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What Remains Series: What Legislation Governs Disputes over Human Remains?

For many years, in Ontario, the legislation relevant to the disposal of human remains was the Cemeteries Act (Revised),[1] and the Funeral Directors and Establishment Act.[2]

The Cemeteries Act sets out the requirements to establish, maintain and operate cemeteries and crematoria.[3]

Collectively, these statutes were repealed and as of July 1, 2012, were replaced by the Funeral, Burial and Cremation Services Act, 2002[4] (the “FBCSA”) which consolidated both statutes and created further regulations.

Subsection 4(3) of the FBCSA prohibits interment of human remains outside of a “cemetery” as defined in the legislation.  The FBCSA provides a definition of “cemetery” (somewhat broader than that contained in the prior legislation) that includes “land that, in the prescribed circumstances, has been otherwise set aside for the interment of human remains.”  This definition of cemetery in the FBCSA provides as follows:

cemetery” means,

(a) land that has been established as a cemetery under this Act, a private Act or a predecessor of one of them that related to Cemeteries, or

(b) land that was recognized by the registrar as a cemetery under a predecessor of this Act that related to Cemeteries,

and includes,

(c) land that, in the prescribed circumstances, has been otherwise set aside for the interment of human remains, and

(d) a mausoleum or columbarium intended for the interment of human remains;[5]

The definition of “crematorium” has also been expanded:

crematorium” means a building that is fitted with appliances for the purpose of cremating human remains and that has been approved as a crematorium or established as a crematorium in accordance with the requirements of this Act or a predecessor of it and includes everything necessarily incidental and ancillary to that purpose;

The definition of “burial site” has been modified somewhat to “land containing human remains that is not a cemetery.”

The definition of “interment rights holder” has been changed somewhat from the previous legislation to mean: “the person who holds the interment rights with respect to a lot whether the person be the purchaser of the rights, the person named in the certificate of interment or such other person to whom the interment rights have been assigned.” The concept of a certificate of interment is an addition to this legislation.

The definitions of “columbarium”, “human remains”, “inter”, “interment rights”, “lot” and “mausoleum” remain as provided for in the prior Cemeteries Act.

Consistent with the Cemeteries Act, the FBCSA requires that the disposal of human remains be undertaken in a “decent” and proper manner.  Specifically, subsection 5(3)(a) of the FBCSA provides that interment of human remains and scattering of cremated remains are to be “carried out in a decent and orderly manner and that quiet and good order are maintained in the cemetery at all times” [emphasis added].

The provisions of the FBCSA, in large part, govern the actions of operators of cemeteries and crematoria.  The FBSCA is primarily administered and enforced by the Bereavement Authority of Ontario (the “BAO”), an independent, not-for-profit, delegated administrative authority acting on behalf of and subject to oversight by the Ministry of the Government and Consumer Services.

According to its website, the BAO was established on January 16, 2016 as a “result of the mutual desire of the Ontario government and the bereavement industry to enhance professionalism, increase consumer protection and provide an effective, efficient and responsive regulatory framework.”[6] Effective April 1, 2016 the licensing and enforcement responsibilities previously exercised by the Board of Funeral Services have been transferred to the BAO, and the Board of Funeral Services was dissolved as a corporation.

The legal role of other parties, including estate trustees and family members, are found in the common law.

[1] RSO 1990, c C 4 (Repealed) (Cemeteries Act)

[2] RSO 1990, c F 36 (Repealed) (Funeral Directors and Establishment Act)

[3] Sections 2 to 7 and 44 to 61, Cemeteries Act

[4] SO 2002, c 33 (the “FBCSA”)

[5] FBCSA, section 1

[6] The Burial Authority of Ontario: https://thebao.ca/home/about-the-bao/ (accessed on 12.02.19)

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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