1. Introduction

Most Canadian provinces and territories have enacted presumption of death legislation, to overcome the difficulties inherent in the common law rules about the proof of death. The legislation permits a court to make a declaration that a person has died if it concludes that the statutory criteria are satisfied. An application for an order that a person has died is not all that common, and therefore it may be helpful to examine the recent case, Re Swanton,[1] in which such a declaration was made

2. Facts

The Applicant, June Arlene Swanton, seeks a declaration under the Declarations of Death Act, 2002,[2] that her husband, Glen Austin Swanton, has died. The parties were married in 1986 and have two children, P and A,[3] now 27 and 26 years old respectively. Early in January 2017, Glen was charged with sexual assault and exploitation based on allegations made by A. Glen was distressed and moved in with his mother. On 17 January 2017 Glen and his vehicle went missing. The Ontario Provincial Police were notified. and the vehicle was found abandoned near the Burnt River. A dive team was unsuccessful in locating Glen and his remains have never been found. The Applicant has not heard from Glen since the day he went missing.

The Application was served on all relevant persons, including the issuer of a life insurance policy on Glen’s life, Glen’s mother, his sister, his half-sister, his children, and his union.

3. Analysis and Judgment

Section 1 of the Act defines ‘interested person’ as any person who is or would be affected by a declaration of death order and includes a spouse. Section 2(1) provides that an interested person may bring an application under subsection (3) for a declaration of death, on notice to other interested persons of whom the applicant is aware.

Subsection 2(4) applies if,

(a)  the individual has disappeared in circumstances of peril;

(b) the applicant has not heard of or from the individual since the disappearance;

(c) to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;

(d) the applicant has no reason to believe that the individual is alive; and

(e)  there is sufficient evidence to find that the individual is dead.

Subsection 2(5) applies if,

(a)  the individual has been absent for at least seven years;

(b) the applicant has not heard of or from the individual during the seven-year period;

(c) to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual during the seven-year period;

(d) the applicant has no reason to believe that the individual is alive; and

(e)  there is sufficient evidence to find that the individual is dead.

The court quoted the following from Grange v The Canada Life Assurance Company:[4]

[20] The requirement for an applicant to make “reasonable inquiries” includes a thorough police investigation, public notification of the search and extensive news coverage of the disappearance: Poole v. Poole,[5] Wasylyk v. Wasylyk[6] ….

Further, by reference to Re Meza,[7] the court noted that sufficient evidence of death can include the fact that the missing person leaves important pieces of identification behind, does not access his bank accounts, does not return to his residence, and has no contact with his family members.

Justice Christie concluded that the statutory conditions for a declaration have been met in that:

1. Glen has been absent for at least seven years with June not hearing of or from Glen during this time.
2. To June’s knowledge, after reasonable inquiries, no other person has heard of or from Glen during this time.
3. This case involved a police investigation, public notification of the search and news coverage of Glen’s disappearance. Glen has not made any contact with his employer or accessed his bank accounts.
4. Glen’s extended family released an obituary and held a Celebration of Life in 2017.
5. June has no reason to believe that Glen is alive. In fact she believes that Glen is dead by reason of suicide by jumping into the water.

The Applicant also intends to apply for appointment as the Administrator of Glen’s estate.

Thus the court found that there is sufficient evidence that Glen is dead and the court so ordered.

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[1]    2025 ONSC 4241.

[2]    SO 2002, c 14, Sched., amended SO 2005, c 5, s 19.

[3]    Although the case gives their full names, I have used initials for reasons of confidentiality.

[4]    2021 ONSC 7551.

[5]    (2008), 41 ETR 3d 223 (Ont. SCJ).

[6]    (2012), ONSC 7029.

[7]    2010 ONSC 4968, para 22.