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The obligation to deal with the remains of a deceased falls to the estate trustee, whether named in the Will, or otherwise appointed by the Court, or named as estate trustee during litigation.
At common law, the duties of the estate trustee in respect of the possession, custody and disposal of the remains of a deceased have been identified as follows:
- To dispose of the body in a decent and dignified manner;[1]
- To dispose of the body in a manner befitting the deceased’s station in life;[2] and
- To provide particulars of the disposal of the deceased’s remains to the deceased’s next of kin.[3]
1. Duty to dispose of the body in a decent and dignified manner
Treating and disposing of the body in a dignified fashion, is the fundamental obligation of an estate trustee.[4]
As for disposal in a “dignified manner,” both cremation and burial are considered to be appropriate means of disposing of corpses in Ontario.[5] The Cemeteries Act and the FBCSA specifically provide for both cremation and burial.
Generally, there is a duty to treat a corpse with dignity. Justice Farley wrote in Abeziz v. Harris Estate, on the duty of an executor, the following:
The fundamental obligation is that the body be appropriately dealt with – that is disposed of in a dignified fashion. Burial and cremation come to mind as being specifically sanctioned in Ontario…[6]
While the case law indicates that either burial or cremation are dignified and acceptable means of disposing of a deceased’s remains, it does not provide further details of those methods of disposal.
Further, in the case of Saunders v Saskatoon Funeral Home Company, Meschishnick J., observed that “if the disposition is to be done in a dignified manner, it must be done in a timely fashion.” [emphasis added][7]
This issue of the specifics or meaning ascribed to, “dignified fashion” was also raised in the decision of Bastien v. Ottawa Hospital (General Campus).[8] In that case, the plaintiffs, a couple whose premature twins had died shortly after birth, and had been buried by the hospital, sought to have the bodies of their babies disinterred so that they could be reburied. The plaintiffs were informed by the hospital that the babies’ bodies had been buried in a single casket with other babies, still births and possibly fetuses such that it would be impossible to disinter the two bodies. The plaintiffs brought an action in negligence against the hospital and funeral home for failing to provide a proper burial. The defendants moved for summary judgment.
The plaintiffs’ counsel argued that it was undignified to “bury strange bodies in the same casket”[9] and that burials typically take place with a single body in a casket, and that the burial in question was “callous, undignified and disrespectful.”[10]
The Court agreed that the hospital was obliged to bury or dispose of remains in a decent and dignified manner, but noted that there was little case law to expand on what that constituted.[11] The Court ruled that what the standard of care was for a “decent and dignified” burial and whether that standard of care had been met were triable issues and denied the defendants’ motion for summary judgment.
In an unreported endorsement in Carter v. Thompson,[12] Justice Bielby noted the argument of counsel for the common law spouse of the deceased, that the estate trustees had abused their authority to deal with the deceased’s remains such that they “ought to lose the right to dispose of the remains.” Justice Bielby noted that “the law is well established that the executors or estate trustees are the one entitled to deal with the remains and have possession of same.” Bielby J., found however, that the manner in which the estate trustees had exercised their authority, and whether they should lose that authority was a triable issue. The matter did not ultimately proceed to trial but the endorsement reflects a recognition that the manner in which estate trustees’ execute their obligations respecting remains can be reviewed by a Court.
In a 2011, regulatory proceeding before the Health Professions Appeal and Review Board (the “HPARB”), MS v JNE,[13] the parents of a fifteen-year-old girl who died unexpectedly at home filed a complaint against a coroner involved in the investigation of their daughter’s death for what they felt was an undignified disposal of their daughter’s heart.
The coroner’s investigation into their daughter’s death was inconclusive, and the coroner made a note in his initial Investigation Statement which read: “The heart was kept for further study, and her family was made aware of this, and supported this approach.” After receiving the toxicology results, the final Report of Post-mortem Examination was completed and there still was not a precise cause of death determined. The report was sent to the parents. The coroner then contacted the funeral home which handled the funeral arrangements for the daughter and asked the funeral home to determine if the family wanted the heart returned. The coroner made a note which said that an individual at the funeral home advised him that the “family doesn’t want the heart returned and that we are OK to discard it”. The individual at the funeral home did not recall this conversation. The heart was subsequently cremated through the Coroner’s Forensic Pathology Unit, without any notice to the parents.
The parents subsequently wrote to the coroner, asking about the heart, saying: “It is imperative that we treat an organ such as the heart according to our traditions and culture. It must not be discarded in any case. Please confirm as soon as possible.” When the parents found out that the heart had been cremated, they filed their complaint about the coroner’s actions. One particular concern was that the coroner had ordered the destruction of their daughter’s heart against their express wishes and in a manner that was not consistent with the culture and traditions of their daughter and the parents. Further, the coroner disposed of the heart to a crematorium in a “batch” with other persons’ body tissues and was not disposed of, in the parents’ opinion, in a “respectful and dignified manner.”
While the HPARB observed that the parents and the coroner “obviously had very different perceptions as to what constituted ‘a respectful and dignified manner’ of disposition”[14] it did not reach a conclusion on this point. The coroner was counseled to ascertain before an autopsy, if possible, the family’s wishes with respect to organs or tissue and that he should speak with the family directly with respect to the disposition of any retained material.
A Note on “Extreme Embalming”
No case law or commentary has appeared in Canada on whether “extreme embalming” is considered “dignified”. Extreme embalming occurs where bodies are embalmed and then manipulated into poses, such as sitting on a couch with a drink and cigarettes, or on a motorcycle, or partaking in the deceased’s favourite pastime.[15] The practice first started in Puerto Rico and has been very popular in Louisiana in the United States.[16] It does not yet appear to be available in any province in Canada.
2.Duty to dispose of the body in a manner befitting the Deceased’s station in life
In deciding how to dispose of a deceased’s remains, an estate trustee may abide by the wishes of the deceased, as long as the expenses are not extravagant or unreasonable and do not unfairly affect the creditors of the estate.[17]
In Decleva Re,[18] the deceased had made an assignment into bankruptcy some two weeks before he passed away. The estate trustee had made arrangements for a funeral and the issue of payment for those expenses was heard by the Court. It was argued that the funeral expenses were a first charge against the estate. The Court ruled, however, that although Section 136 of the Bankruptcy and Insolvency Act[19] provides that “in the case of a deceased bankrupt” all reasonable funeral and testamentary expenses are to be paid in priority, the provision only applied in cases where individuals had not claimed bankruptcy prior to death, and whose estates were bankrupt after their death. The Court ruled that the provision providing priority to funeral and testamentary expenses did not apply to individuals who claimed bankruptcy during their lifetimes. The provision applies to bankrupt estates, not to the estates of bankrupt individuals.
The result is stark: an estate trustee has no authority to pay for a funeral for an undischarged bankrupt from the estate. At paragraph 14, Reg. S.W. Nettie writes:
14 Thus, in Ontario, if there are insufficient assets to bury an undischarged bankrupt, and no person, consequently, steps forward to claim the remains, and become burdened with burial costs, the city will provide a pauper’s funeral.
In Schara Tzedeck v. Royal Trust Co.,[20] the deceased had named a trust company as her executor. The deceased’s Will had directed the terms of her burial. The Board of the cemetery set the burial fee at $3,000.00 but did not contact the trust company about the fee until after the burial. The trust company refused to pay the amount set by the cemetery on the basis that the amount was exorbitant and had not been agreed upon. The deceased’s estate was valued at $105,000.00.
In reviewing the case, the Supreme Court stated that at common law, there is a duty upon an executor to bury a deceased in a manner that is fit for his or her station in life.[21]
As there had been no agreement as to fees, and the manner in which the fee had been set was unclear, the Court upheld the reduced amount of $450.00, as ordered by the trial judge, as just and reasonable.[22]
3. Duty to provide particulars of the disposal of the remains to next of kin
From a practice perspective, this next issue often arises: Family members complain that the named estate trustee failed to inform them of the details of a burial or cremation until after the ceremony had been completed, if at all. While estate trustees have significant authority to decide about the manner in which a deceased’s remains are to be disposed of, they are also obliged to inform the next of kin of such arrangements.
In Sopinka (Litigation Guardian of) v. Sopinka,[23] the defendant’s son and husband both died of cancer within three months of each other. The son had been divorced, and had two children who were minors. The son had named his father as executor but since the father died while acting as executor, the defendant took over the role of personal representative.
The son was cremated and later placed in the father’s coffin and buried. The details of the burial were not provided to the son’s ex-wife or children until the following year. The son’s ex-wife brought an action seeking damages on the basis on which the body had been disposed of, and the delay in informing her of the disposal of the remains.
There was a difficult history in the family, and the defendant stated that she was afraid of the son’s ex-wife as she had a pattern of violence.
On the issue of informing family members of the disposal of remains, Justice Quinn wrote at paragraphs 35 and 36:
35 Although I was not provided with any authority on point, I am prepared to hold that there is a duty on an estate trustee, upon request, to provide particulars to the next of kin of the deceased regarding his or her burial. I would define next of kin to generally include the mother, father, children, brothers, sisters, spouse and common law spouse of the deceased. Where next of kin happen to be minors, I think that the duty is owed to them through their custodial parent or guardian.
36 The specific request must be reasonable and the nature of the particulars provided must be appropriate in the circumstances.
Based on the particular facts of the case, and the defendant’s undisputed fear of the plaintiff, and the fact that to inform the deceased’s children, the defendant would have had to inform the plaintiff who was known to be violent and obstructive, Justice Quinn found that there was no breach of duty on the part of the defendant.[24]
Nevertheless, there is a positive duty on an estate trustee to inform the next of kin of the disposal of the remains, when so requested. As such, estate trustees should be informed of the importance of this duty.
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[1] Abeziz v Harris Estate, 1992 CarswellOnt 3803, at para 28; Saleh v Reichert (1993), 1993 CarswellOnt 567 (Gen Div.) at para 8 (“Saleh”)
[2] Schara Tzedeck v Royal Trust Co., [1953] 1 SCR 31, [1952] 4 DLR 529 at para 12 (“Schara”)
[3] Sopinka (Litigation Guardian of) v Sopinka, 2001 CarswellOnt 3234, 55 OR (3d) 529, 42 ETR (2d) 105 (“Sopinka”)
[4] Lajhner, supra note 29 at paragraph 22
[5] Abeziz, supra note 27 at paragraph 28, Lajhner, supra note 29 at paragraph 21
[6] Abeziz, supra note 27
[7] Saunders v Saskatoon Funeral Home Company, 2016 SKQB 217 at para 17
[8] 2001 CarswellOnt 3561, 56 OR (3d) 397 (“Bastien”)
[9] Bastien, at para 37
[10] Bastien, at paras 38 to 39
[11] Bastien, at paras 47 and 48
[12] Superior Court of Justice file number CV70-1809-ES
[13] 2011 CanLII 57991 (ON HPARB) (“MS”)
[14] MS v JNE, 2011 CanLII 57991 (ON HPARB) at para 33
[15] See https://abcnews.go.com/US/dead-people-life-poses-funerals/story?id=23456853
[16] https://www.vice.com/en_ca/article/9kmqy7/inside-the-funeral-homes-posing-the-dead-like-theyre-still-alive
[17] Donna C. Cappon and Robyn M. Hawkins, “Funeral” in Widdifield on Executors and Trustees (Toronto: Thomson Carswell, 2008) 1-1
[18] 2008 CarswellOnt 2106, 42 CBR (5th) 80, 40 ETR (3d) 144
[19] RSC 1985, c B 3
[20] Schara, supra note 41
[21] Schara at para 12
[22] Schara at para 14
[23] Sopinka, supra note 42
[24] Sopinka at para 37
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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.
