Sadly, people disappear and are often never found. As time passes, many missing persons are presumed to be deceased by their friends and family. As you may already know, without a Death Certificate, these loved ones are presented with a legal quandary as to how they will go about managing the affairs of the deceased. While this issue does not frequently arise, it does happen that occasionally, a family member will need to take steps to have their loved one declared dead.
That was the case in Johnston v. Hasan et al.,[1] a decision which dealt with a daughter seeking such a declaration for her mother. In Hasan, the applicant was the birth daughter of Nuseiba Hasan (the “Deceased”), while the respondent was the sister of the Deceased. The applicant sought a declaration that her mother deceased, and if necessary, an application that she is an absentee. She also sought an order she may swear on an application for a Certificate of Appointment of Estate Trustee without a Will that her mother is dead. The respondent opposed all requests for relief save for the declaration under the Absentees Act.
The Law
The Declarations of Death Act, 2002[2] allows an “interested person” to apply to the Ontario Superior Court of Justice for an order that a missing individual be declared legally dead. Under section 2(3) of DODA, the Court is authorized that an individual has died if the person disappeared in “circumstances of peril,” or, if the person has been missing for seven years or more.
The Absentees Act,[3] defines an “absentee” as a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead. Upon application, the Court may declare the missing person an “absentee.” The Court may then make an order for the custody, care and management of the property of the absentee, and a committee may be appointed for this purpose.[4]
Background
The Deceased was born in Jordan in 1980 and moved to Canada as a child. In 1989, she became pregnant with the applicant, who she delivered at the age of 19. The applicant was in the care of the Deceased until 2001, when she was placed in foster care. In 2003, she was adopted by a family in Ottawa.[5]
There was evidence that the Deceased had given the applicant up for adoption because she could not care for her as a single parent without family support, and that her family was not supportive because of the circumstances surrounding the applicant’s birth.[6] The Deceased is reported to have said she may be able to reconcile with her family if she were no longer a single parent. In addition to the family conflict, there is also some evidence the Deceased was being abused by the applicant’s father.
In February of 2015, a family friend advised the Hamilton Police Service that the Deceased had not been seen or heard from since 2006 and expressed concerns that a family member had killed her. A missing persons file was opened and was later reassigned to the Major Crime Unit on March 5, 2015, to be investigated as a homicide.[7]
Since 2006, the Deceased has had no contact with any government services, made no banking transactions, has not been admitted to a hospital or received medical treatment, and did not renew her driver’s licence when it expired in 2007. Her last social media post was recorded in November 2006. Despite her disappearance which was widely covered by local and national media, no one has come forward with information respecting her whereabouts.[8]
Coincidentally, the applicant, with the help of her adoptive mother, began looking for her birth mother (the “Deceased”) in 2013. After discovering that her birth mother had disappeared through media reports, the applicant and her adoptive mother hired a private investigator to find the Deceased in 2016. Two years later, the applicant contacted an investigative journalist to enquire into the life of the Deceased and spread awareness of her disappearance.[9]
Application of the Declarations of Death Act, 2002
In Hasan, the applicant asserted that she is an “interested person” for the purposes of s. 1 of the DODA which would grant her standing to bring the application.[10] None of the listed definitions of “interested person” applied to the applicant. What’s more, because she was adopted by other parents, she is not considered the next of kin of the Deceased.[11]
The applicant, however, made two arguments in support of the proposition that she has standing: she argues the list in the DODA definition of “interested person” is not exhaustive and that in the alternative, she should have standing through the mechanism of the Absentees Act. The court was satisfied that the applicant has standing on either of these bases.[12]
The court in Hasan noted that for the purposes of s. 2(6) of DODA, the court may order that a person be declared dead “only for certain purposes,” but that those purposes are not limited by the language in DODA. The court was therefore of the view that DODA allows that a person’s “interest” need not be solely related to the property of the missing person and that an interested person might be affected by a declaration of death in ways other than financial.
While the court held that the applicant is an interested person within the meaning of DODA, it also agreed that the applicant may become an interested person within the meaning of DODA by operation of the Absentees Act. Pursuant to that act, an absentee is considered a person who, “having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead.”[13] The court may declare a person an absentee where “it is shown that due and satisfactory inquiry has been made.”[14] Upon making a declaration that a person is an absentee, the court may also make an order appointing “a committee” for the “custody, due care, and management of property” of the absentee.[15]
Application of the legislation to the case at bar
The court was not only satisfied that the Deceased was an absentee for the purposes of the Absentees Act but also, that it is appropriate to appoint the applicant as the committee for the custody, due care and management of the property of the Deceased.[16]
The respondent opposed the appointment of the applicant as committee and despite the fact she did not bring her own application, proposed in response that she should be the committee.
The court resoundingly rejected this proposal and concluded that none of the family were suitable candidates for the role of committee. The court stated that none of the family ever reported her missing, none of them took steps to preserve or deal with her estate, and that some (including the respondent) resist the idea that the Deceased is dead, despite the compelling evidence that she is both absent and dead.[17]
It was noted that the court may make a declaration that a person is dead if the individual has been absent for at least seven years, if the applicant has not heard from the individual for seven years, if, to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual for seven years, if that applicant has no reason to believe the individual is alive and if there is sufficient evidence to believe the individual is dead.[18]
In this case, a dearth of evidence suggested neither the applicant, nor, anyone else had seen or heard from the Deceased for more than seven years. Significant media attention was given to her disappearance and reasonable inquiries were made by the applicant and the police, leading to conclusions that there is no reason to believe the Deceased was alive, and sufficient reason to believe she is dead.[19]
The sister of the Deceased resisted the request to declare her dead. The court respected her “understandable desire to hold on to the idea that her sister is alive,” but highlighted that the very purpose of the DODA is to deal with cases where no body has been found. As a result, the court made an order declaring the Deceased dead as of the date of the hearing of the application, August 28, 2023.
Dealing with the Deceased’s Estate
Since the applicant intended to apply for a Certificate of Appointment of Estate Trustee without a Will, she asked the court to order that she may swear on her application that the Deceased died on August 28, 2023. In making this request, she relied on the following passage from Brian Schnurr, Estate Litigation, 2nd ed. (Carswell), at s. 10:3:
Once death is established under subsections 2(4) or 2(5), the court may order that the individual is presumed dead for all purposes. This order may be used in relation to the granting and revoking of Certificates of Appointment of Estate Trustees With or Without a Will (or Letters Probate or Letters of Administration of the property of the deceased person).
Previously, for the court to have jurisdiction to grant an applicant permission to swear the death of the missing person, it was necessary that the deceased have property in Ontario to be administered. There is no such requirement under the Act.
Once the order declaring the death of the person is obtained, the applicant may swear that the missing person has died. As a matter of practice, it is suggested that the order should specifically authorize the executor of the estate to swear an affidavit as to the death of the deceased person on the application for a Certificate of Appointment of Estate Trustee. Once the court grants the order, an application for a Certificate of Appointment of Estate Trustee is filed in the ordinary manner together with a supplementary affidavit by the applicant confirming the content of the court order. A copy of the order declaring the death should be filed with the application [emphasis added].
The court agreed that the order requested was appropriate and authorized the applicant to swear in the application for a Certificate of Appointment of Estate Trustee without a Will that the Deceased died on August 28, 2023. No costs were payable to any party to the Application.
Analysis
The decision in Hasan demonstrated not only the reach of DODA and the Absentees Act but also, the flexibility of the court in exercising its discretion to render a judgment that was fair and just in the circumstances. While it is understandable that certain family members would not want a loved one declared dead, in this circumstance, with foul play suspected and over a decade having lapsed since the Deceased was last seen, it made sense to grant the relief sought by the applicant. Although she was never able to meet her mother, the applicant should be commended for being the first person to take an active role in trying to locate her and bring attention to her disappearance. One can only hope that this declaration brought some level of closure to the grieving daughter.
For an in-depth look at DODA and the Absentees Act, including additional decisions which deal with the prolonged disappearance and declaration of a person as deceased, I invite you to a further read here. Thank you for reading.
—
[1] 2023 ONSC 5094 [Hasan].
[2] S.O. 2002, c. 14, Sched. [DODA]
[3] R.S.O. 1990, c. A.3 [Absentees Act].
[4] The committee has the same powers and is subject to the same duties as a guardian of property under the Substitute Decisions Act. The committee is also specifically authorized to expend monies for the purpose of locating the absentee and in ascertaining whether he or she is alive or dead.
[5] Hasan, supra at paras. 3-4.
[6] The applicant was born out of wedlock to a non-Muslim black man who had immigrated to Canada from Jamaica.
[7] The police theorized that the Deceased died at the Hasan family farm in Flamborough, Ontario, at the hands of one or more of her family members and that her body was later disposed of. The homicide investigation remains open and evidence collected by police suggests the Deceased was last seen or heard in 2006 when she was taken to the family farm by a family member. An extensive search in 2016, however, revealed no evidence of her remains.
[8] Hasan, supra at paras. 8-9.
[9] In 2022, that journalist released an 8-episode podcast. Unfortunately, that effort revealed nothing about the whereabouts of the Deceased.
[10] The list includes a person named as executor or estate trustee, a person who may be entitled to apply to be appointed administrator of the individual’s estate on intestacy, the individual’s spouse, the individual’s next of kin, the individual’s guardian or attorney for personal care or property under the Substitute Decisions Act, 1992, a person who is in possession of property owned by the individual, an insurer or claimant under a contract of life insurance or group insurance insuring the individual’s life, and if the individual has been declared an absentee under the Absentees Act then the committee of his or her estate.
[11] She is in law, considered the daughter of the adoptive parents for the purposes of s. 217 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14.
[12] The court held that the definition of s. 1 of the DODA is not exhaustive and that the specified interested persons are representative and not a complete catalogue and that the term “including” in the definition is a term of extension that is “designed to enlarge the meaning of preceding words, and not to limit them” pursuant to the decision in National Bank of Greece (Canada) v. Katsikonouris, [1990] 2. S.C.R. 1029, at para. 13. Under the Absentees Act, however, an application can be brought by anyone.
[13] Absentees Act, supra at s. 1.
[14] Ibid., at s. 2(1).
[15] Ibid., at s. 4.
[16] The evidence before the court was that the Deceased held little or no property in Ontario but may have property in Jordan.
[17] Hasan, supra at para. 30.
[18] DODA, supra at s. 2(4) and (5).
[19] See Poole v. Poole (2008), 41 E.T.R. (3d) 223 (Ont. S.C.J.), at paras. 3-5; Wasylyk v. Wasylyk, 2012 ONSC 7029, at para. 32; Puffer v. Puffer, 2012 ONSC 3579, at paras. 7 -12.
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Written by: WEL Partners
Posted on: September 29, 2023
Categories: Commentary, WEL Newsletter
Sadly, people disappear and are often never found. As time passes, many missing persons are presumed to be deceased by their friends and family. As you may already know, without a Death Certificate, these loved ones are presented with a legal quandary as to how they will go about managing the affairs of the deceased. While this issue does not frequently arise, it does happen that occasionally, a family member will need to take steps to have their loved one declared dead.
That was the case in Johnston v. Hasan et al.,[1] a decision which dealt with a daughter seeking such a declaration for her mother. In Hasan, the applicant was the birth daughter of Nuseiba Hasan (the “Deceased”), while the respondent was the sister of the Deceased. The applicant sought a declaration that her mother deceased, and if necessary, an application that she is an absentee. She also sought an order she may swear on an application for a Certificate of Appointment of Estate Trustee without a Will that her mother is dead. The respondent opposed all requests for relief save for the declaration under the Absentees Act.
The Law
The Declarations of Death Act, 2002[2] allows an “interested person” to apply to the Ontario Superior Court of Justice for an order that a missing individual be declared legally dead. Under section 2(3) of DODA, the Court is authorized that an individual has died if the person disappeared in “circumstances of peril,” or, if the person has been missing for seven years or more.
The Absentees Act,[3] defines an “absentee” as a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead. Upon application, the Court may declare the missing person an “absentee.” The Court may then make an order for the custody, care and management of the property of the absentee, and a committee may be appointed for this purpose.[4]
Background
The Deceased was born in Jordan in 1980 and moved to Canada as a child. In 1989, she became pregnant with the applicant, who she delivered at the age of 19. The applicant was in the care of the Deceased until 2001, when she was placed in foster care. In 2003, she was adopted by a family in Ottawa.[5]
There was evidence that the Deceased had given the applicant up for adoption because she could not care for her as a single parent without family support, and that her family was not supportive because of the circumstances surrounding the applicant’s birth.[6] The Deceased is reported to have said she may be able to reconcile with her family if she were no longer a single parent. In addition to the family conflict, there is also some evidence the Deceased was being abused by the applicant’s father.
In February of 2015, a family friend advised the Hamilton Police Service that the Deceased had not been seen or heard from since 2006 and expressed concerns that a family member had killed her. A missing persons file was opened and was later reassigned to the Major Crime Unit on March 5, 2015, to be investigated as a homicide.[7]
Since 2006, the Deceased has had no contact with any government services, made no banking transactions, has not been admitted to a hospital or received medical treatment, and did not renew her driver’s licence when it expired in 2007. Her last social media post was recorded in November 2006. Despite her disappearance which was widely covered by local and national media, no one has come forward with information respecting her whereabouts.[8]
Coincidentally, the applicant, with the help of her adoptive mother, began looking for her birth mother (the “Deceased”) in 2013. After discovering that her birth mother had disappeared through media reports, the applicant and her adoptive mother hired a private investigator to find the Deceased in 2016. Two years later, the applicant contacted an investigative journalist to enquire into the life of the Deceased and spread awareness of her disappearance.[9]
Application of the Declarations of Death Act, 2002
In Hasan, the applicant asserted that she is an “interested person” for the purposes of s. 1 of the DODA which would grant her standing to bring the application.[10] None of the listed definitions of “interested person” applied to the applicant. What’s more, because she was adopted by other parents, she is not considered the next of kin of the Deceased.[11]
The applicant, however, made two arguments in support of the proposition that she has standing: she argues the list in the DODA definition of “interested person” is not exhaustive and that in the alternative, she should have standing through the mechanism of the Absentees Act. The court was satisfied that the applicant has standing on either of these bases.[12]
The court in Hasan noted that for the purposes of s. 2(6) of DODA, the court may order that a person be declared dead “only for certain purposes,” but that those purposes are not limited by the language in DODA. The court was therefore of the view that DODA allows that a person’s “interest” need not be solely related to the property of the missing person and that an interested person might be affected by a declaration of death in ways other than financial.
While the court held that the applicant is an interested person within the meaning of DODA, it also agreed that the applicant may become an interested person within the meaning of DODA by operation of the Absentees Act. Pursuant to that act, an absentee is considered a person who, “having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead.”[13] The court may declare a person an absentee where “it is shown that due and satisfactory inquiry has been made.”[14] Upon making a declaration that a person is an absentee, the court may also make an order appointing “a committee” for the “custody, due care, and management of property” of the absentee.[15]
Application of the legislation to the case at bar
The court was not only satisfied that the Deceased was an absentee for the purposes of the Absentees Act but also, that it is appropriate to appoint the applicant as the committee for the custody, due care and management of the property of the Deceased.[16]
The respondent opposed the appointment of the applicant as committee and despite the fact she did not bring her own application, proposed in response that she should be the committee.
The court resoundingly rejected this proposal and concluded that none of the family were suitable candidates for the role of committee. The court stated that none of the family ever reported her missing, none of them took steps to preserve or deal with her estate, and that some (including the respondent) resist the idea that the Deceased is dead, despite the compelling evidence that she is both absent and dead.[17]
It was noted that the court may make a declaration that a person is dead if the individual has been absent for at least seven years, if the applicant has not heard from the individual for seven years, if, to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual for seven years, if that applicant has no reason to believe the individual is alive and if there is sufficient evidence to believe the individual is dead.[18]
In this case, a dearth of evidence suggested neither the applicant, nor, anyone else had seen or heard from the Deceased for more than seven years. Significant media attention was given to her disappearance and reasonable inquiries were made by the applicant and the police, leading to conclusions that there is no reason to believe the Deceased was alive, and sufficient reason to believe she is dead.[19]
The sister of the Deceased resisted the request to declare her dead. The court respected her “understandable desire to hold on to the idea that her sister is alive,” but highlighted that the very purpose of the DODA is to deal with cases where no body has been found. As a result, the court made an order declaring the Deceased dead as of the date of the hearing of the application, August 28, 2023.
Dealing with the Deceased’s Estate
Since the applicant intended to apply for a Certificate of Appointment of Estate Trustee without a Will, she asked the court to order that she may swear on her application that the Deceased died on August 28, 2023. In making this request, she relied on the following passage from Brian Schnurr, Estate Litigation, 2nd ed. (Carswell), at s. 10:3:
Once death is established under subsections 2(4) or 2(5), the court may order that the individual is presumed dead for all purposes. This order may be used in relation to the granting and revoking of Certificates of Appointment of Estate Trustees With or Without a Will (or Letters Probate or Letters of Administration of the property of the deceased person).
Previously, for the court to have jurisdiction to grant an applicant permission to swear the death of the missing person, it was necessary that the deceased have property in Ontario to be administered. There is no such requirement under the Act.
Once the order declaring the death of the person is obtained, the applicant may swear that the missing person has died. As a matter of practice, it is suggested that the order should specifically authorize the executor of the estate to swear an affidavit as to the death of the deceased person on the application for a Certificate of Appointment of Estate Trustee. Once the court grants the order, an application for a Certificate of Appointment of Estate Trustee is filed in the ordinary manner together with a supplementary affidavit by the applicant confirming the content of the court order. A copy of the order declaring the death should be filed with the application [emphasis added].
The court agreed that the order requested was appropriate and authorized the applicant to swear in the application for a Certificate of Appointment of Estate Trustee without a Will that the Deceased died on August 28, 2023. No costs were payable to any party to the Application.
Analysis
The decision in Hasan demonstrated not only the reach of DODA and the Absentees Act but also, the flexibility of the court in exercising its discretion to render a judgment that was fair and just in the circumstances. While it is understandable that certain family members would not want a loved one declared dead, in this circumstance, with foul play suspected and over a decade having lapsed since the Deceased was last seen, it made sense to grant the relief sought by the applicant. Although she was never able to meet her mother, the applicant should be commended for being the first person to take an active role in trying to locate her and bring attention to her disappearance. One can only hope that this declaration brought some level of closure to the grieving daughter.
For an in-depth look at DODA and the Absentees Act, including additional decisions which deal with the prolonged disappearance and declaration of a person as deceased, I invite you to a further read here. Thank you for reading.
—
[1] 2023 ONSC 5094 [Hasan].
[2] S.O. 2002, c. 14, Sched. [DODA]
[3] R.S.O. 1990, c. A.3 [Absentees Act].
[4] The committee has the same powers and is subject to the same duties as a guardian of property under the Substitute Decisions Act. The committee is also specifically authorized to expend monies for the purpose of locating the absentee and in ascertaining whether he or she is alive or dead.
[5] Hasan, supra at paras. 3-4.
[6] The applicant was born out of wedlock to a non-Muslim black man who had immigrated to Canada from Jamaica.
[7] The police theorized that the Deceased died at the Hasan family farm in Flamborough, Ontario, at the hands of one or more of her family members and that her body was later disposed of. The homicide investigation remains open and evidence collected by police suggests the Deceased was last seen or heard in 2006 when she was taken to the family farm by a family member. An extensive search in 2016, however, revealed no evidence of her remains.
[8] Hasan, supra at paras. 8-9.
[9] In 2022, that journalist released an 8-episode podcast. Unfortunately, that effort revealed nothing about the whereabouts of the Deceased.
[10] The list includes a person named as executor or estate trustee, a person who may be entitled to apply to be appointed administrator of the individual’s estate on intestacy, the individual’s spouse, the individual’s next of kin, the individual’s guardian or attorney for personal care or property under the Substitute Decisions Act, 1992, a person who is in possession of property owned by the individual, an insurer or claimant under a contract of life insurance or group insurance insuring the individual’s life, and if the individual has been declared an absentee under the Absentees Act then the committee of his or her estate.
[11] She is in law, considered the daughter of the adoptive parents for the purposes of s. 217 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14.
[12] The court held that the definition of s. 1 of the DODA is not exhaustive and that the specified interested persons are representative and not a complete catalogue and that the term “including” in the definition is a term of extension that is “designed to enlarge the meaning of preceding words, and not to limit them” pursuant to the decision in National Bank of Greece (Canada) v. Katsikonouris, [1990] 2. S.C.R. 1029, at para. 13. Under the Absentees Act, however, an application can be brought by anyone.
[13] Absentees Act, supra at s. 1.
[14] Ibid., at s. 2(1).
[15] Ibid., at s. 4.
[16] The evidence before the court was that the Deceased held little or no property in Ontario but may have property in Jordan.
[17] Hasan, supra at para. 30.
[18] DODA, supra at s. 2(4) and (5).
[19] See Poole v. Poole (2008), 41 E.T.R. (3d) 223 (Ont. S.C.J.), at paras. 3-5; Wasylyk v. Wasylyk, 2012 ONSC 7029, at para. 32; Puffer v. Puffer, 2012 ONSC 3579, at paras. 7 -12.
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