September 11th is always a difficult day. Like many people, I remember exactly where I was when I first heard about the awful terrorist incidents in 2001. I was glued to the television as the tragedy unfolded. It remains shocking. This year the situation is compounded by the loss of life and misery inflicted on those affected by the extreme weather in the Caribbean, Mexico, and the southern United States.
It’s hard for me to write a blog post today that is positive. Perhaps the best I can do is to point out how the law has changed following 9/11 respecting declarations of death that occur in calamitous circumstances where the body of the deceased cannot be found. The Declarations of Death Act 2002, S.O. 2002, c.14 is a kind statute that revises the common law to ease process by which death may be declared for legal purposes.
At common law, the fact that someone has died and that there is no body available for the issuance of a death certificate can be resolved through proof before a court. The person seeking that judicial declaration can be aided through a rebuttable presumption of death where a person is missing and has not been heard of for seven years. The exact date of death may still require some form of proof even where the presumption applies and this is a question of fact for the court; Re Miller, 1978 CanLII 1592 (H.C.J.). While a person remains missing, there is jurisdiction under the Absentees Act, R.S.O. 1990, c.A.3, to make a an order for administration of the absentee’s assets and discharge of his or her obligations.
The Declarations of Death Act 2002 was enacted to streamline the process of declaring a person dead where no remains can be located (the fact of death can still be pleaded and proved in an individual case). The Act allows a single application to be brought for a declaration that suits a wide variety of legal purposes. Subsection 2(4) of the Act provides that a person may be declared dead if the court is satisfied that:
- the individual has disappeared in circumstances of peril;
- the family member or interested party has not heard of or from the missing person since the disappearance;
- the family member or interested party’s knowledge, after making reasonable inquiries, no other person has heard of or from the missing person since the disappearance
- the family member or interested party has no reason to believe the missing person is alive; and;
- there is sufficient evidence to find that the individual is dead.
For those that are interested there is a nice discussion of the statute in Puffer v. The Public Guardian and Trustee, 2012 ONSC 3579 (Ont. S.C.J.).
Have a nice day,
David