Funeral services providers are heavily regulated in Ontario. They must follow the provisions of the Funeral, Burial and Cremation Services Act (“the Act”). Under the Act, a service provider’s licence may not be renewed if “the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty”.
The Act is administered by the Bereavement Authority of Ontario. The Registrar of the Bereavement Authority of Ontario can make the decision of whether to revoke a licence or not. A licencee who disagrees with the Registrar’s decision can request a hearing before the Licence Appeal Tribunal (“the LAT”). LAT decisions can be appealed to the Divisional Court. In considering an appeal, the standard of review applied by the Divisional Court on a question of law is “correctness”, and on a question of fact or mixed fact and law, is on a “palpable and overriding error” standard.
Registrar, Funeral Burial, and Cremation Services Act v. Thomas was an appeal by the Registrar to the Divisional Court. The licencee’s funeral preplanner licence was revoked by the Registrar. The Registrar’s decision was reversed by the LAT. The Registrar appealed to the Divisional Court.
The Registrar alleged that the past conduct of the licencee in question demonstrated that she would not carry on business in accordance with the law and with integrity and honesty. On an agreed statement of facts, it was agreed that the licencee misappropriated funds from consumers in two separate instances. In one instance, the licencee suggested that in order to facilitate a transaction, the consumer transfer payments to the licencee’s personal account, which she would later transfer to her employer. Unfortunately, not all of the funds were transferred by the licencee to the employer. $1,000 was not transferred, apparently by inadvertence: the licencee claimed that she was not aware that she had received the transfer. In a second instance, the consumer preplanned his interment space and a monument. However, he could not make full payment, and died before full payment was made. $1,652 remained outstanding on his contract before he died. The licencee made the payment from the trust account of another family, and billed the deceased’s family after the deceased died. The payment made by the deceased’s family went, unbeknownst to them, to the account of the other family.
The LAT considered the fact that the licencee did not misappropriate funds for her own benefit, and there was, ultimately, no harm to her consumer clients. While the licencee’s actions may have been “deficient and could have been more professional”, the transactions did not lead to a concern that she would act without integrity and honesty. The LAT stated “Given this experience, I expect that [the licencee] has learned that she must do a better job separating her personal relationships with her clients from her professional role.”
The Divisional Court upheld the licence reinstatement decision made by the LAT. It found that the LAT properly focused its analysis on the nature and severity of the misconduct in determining whether it gave rise to reason to believe that the licencee cannot perform her functions in accordance with the law and with honesty and integrity. The LAT made no error of law, and no palpable and overriding error in the application of the test.
Although the licencee in that case was allowed to keep her licence, it is comforting to know that the actions of funeral professionals are closely scrutinized, and that those who will not follow the law or carry on business with integrity and honesty will not be allowed to carry on business.
Thank you for reading. Have a great weekend.
Disposing of the body is a fundamental responsibility of an estate trustee, and an estate trustee is entitled to be reimbursed from the estate for legitimate and reasonable funeral expenses. In considering what is “reasonable”, the court will consider the deceased’s “station in life”, and other circumstances, such as any direction from the deceased in the will or otherwise, the size of the estate, and cultural and religious beliefs, practices and traditions: see Chernichan v. Chernichan (Estate), a decision of the Queen’s Bench of Alberta.
In Zaradic Estate (Re), the Supreme Court of British Columbia disallowed an estate expense of $11,525.01 claimed by the two estate trustees for a trip to Croatia to deliver and scatter the deceased’s cremated remains. There was no specific provision in the will directing that the remains be taken to Croatia. However, the will did provide that the executors could incur expenses in relation to the deceased’s funeral. The executors also gave evidence, which was accepted by the court, that the deceased wanted his remains taken to Croatia. However, the court held that there was no justification for BOTH estate trustees to travel to Croatia. Therefore, only half of the cost of the trip was allowed.
(In Zaradic, the estate trustees, who were friends of the deceased, were also denied executor compensation. Although the will provided that they could claim compensation in the amount of 10% of the value of the estate, the court held that their actions disqualified them from receiving any compensation. The estate trustees had attempted to sell the deceased’s residence to their daughter at a price well below market value. The residual beneficiary commenced litigation in order to stop the proposed improvident sale. “The actions of the executors were an egregious breach of their fiduciary duty. If they had been successful, the beneficiary would have been swindled out of 50% of the estate’s value, and the executor’s (sic) daughter, their only child, would have thereby profited. … the actions of the executors are sufficiently egregious to disentitle them to any fee.”)
In The Estate of George Francis Perkins, the estate trustee claimed payment for airfare for his son and daughter-in-law (the deceased’s grandson and granddaughter-in-law) to travel to the deceased’s funeral. The court disallowed half of this expense, stating that it was unreasonable for the estate to pay for BOTH tickets, in light of the small size of the estate.
Where expenses are incurred for funeral and burial related matters, the beneficiaries of the estate will examine these closely, and the courts will likely disallow anywhere there is a hint of unreasonableness, or where it appears that the estate trustees were unfairly taking advantage of their position at the expense of the estate.
Have a great weekend.
The COVID-19 pandemic has changed the way in which we live our lives, with strict limitations on social gatherings of any kind, including funerals. However, deaths obviously continue to occur during this period, with death rates among certain population groups on the rise, and delaying memorials and funerals until after the current health crisis has ended, whenever that may ultimately be, may be impractical and/or prolong the grieving process.
A review of recent news articles suggests that several trends are beginning to emerge in respect of funerals as large in-person gatherings continue to be prohibited throughout Canada and much of the world:
- Some funerals are being held using video-conferencing software such as Zoom, with enhanced ability for family members living abroad to participate, with some funeral services continuing in-person, with very limited attendance (typically limited to five individuals, including the officiant) and distance of no less than six feet between attendees who are not members of the same household;
- Communities such as Flatrock, Newfoundland, have seen cars line up along the side of a street to blink their lights as the hearse passes by on its way to the cemetery as a way to show their respect without potential exposure to the virus;
- In Quebec, because of concerns over transmission, embalming in respect of the remains of a victim of COVID-19 is prohibited, there are restrictions as to the timing for visitations and interment, and funeral-related service providers are relying upon protective equipment (such as N95 masks and gloves) to stay safe while handing remains of COVID-19 victims;
- Funerals in Calgary and elsewhere are reportedly “going digital”, with funeral home directors citing the increased role of online photo gathering and live-streamed funeral services;
- Online visitations are gaining popularity (according to funeral workers in Windsor), while some Jewish families are sitting shiva on Zoom.
It will be interesting to see whether any of these trends survive the lessening of restrictions on social gatherings.
Thank you for reading.
Other blog entries that may be of interest:
With the summer vacation now at the midpoint, many people are travelling as part of their holidays. But, what can one do when a friend or family member dies while you are on vacation? Does your trip have to be cut short? Are there additional charges to be paid for changing dates on plane tickets and for hotel room cancellations? Not any longer. In many cases, a livestream funeral service is now available. Some companies provide this service via the internet. Or, depending upon the funeral home, wireless can be used to stream the memorial service using facetime or skype. There are even websites that provide information and assist with the planning of the do-it-yourself camera work.
There are many advantages for those who cannot attend even if not on vacation. Other reasons to not attend in person might be because of illness, distance, cost or other barriers. Now almost everyone can attend from wherever they are.
Also, the funeral service can be archived and watched again online. This can be of benefit not only to those who could not attend the service in person but also to family members who were there. It can help in dealing with their loss or to simply remember things that were missed in the immediate grief of the service. Technology has developed rapidly. It has become accepted and has recently extended into the areas of wills and estates, providing services such as online obituaries instead of publishing in newspapers; advertising for estate creditors using online services instead of much more expensive newspaper print notices; cataloging and registering the location of wills (in some jurisdictions); assisting lawyers in automated interactive drafting of wills (like the Hull e-State Planner); recognizing the validity of electronic wills (in some jurisdictions); among others. The trend towards even more changes coming in this area is strong and there is hope that expanding technology use will serve to assist friends and family members through difficult times.
Thanks for reading!
You’re likely familiar with the Christian burial phrase “ashes to ashes, dust to dust.” While that phrase has been recited over graves for centuries, it may need changing in Washington state. With the green light given to the composting of human remains, “dust to dirt” may be a more appropriate way of putting it.
A new path for human remains
The Washington state law allowing the composting of human remains will take effect in May of 2020. It means that, in addition to cremation or burial, a body can now be composted naturally into soil.
Like all composting, it’s a simple and natural process. The body is covered in a natural material, like straw or wood chips. Over the course of several weeks, the body breaks down into soil. Families are free to visit the complex during this process. When the composting is finished, the soil is given to the family and they can do with it as they please.
Environmental friendly – and cost effective
While composting won’t be an option for everyone, it will certainly appeal to those who want a cost-effective, environmentally-friendly option for disposing of their remains at death.
For instance, there are no air quality concerns that can come with cremation, and composting doesn’t use up valuable tracks of land the way a cemetary can. In fact, the process actually “creates” land by adding more soil to the world.
And cost-wise, the woman who spearheaded the move to allow composting – Katrina Spade, CEO of Recompose – estimates that the approximate cost of composting (US$5,500) will be just below the cost of cremation, and far less than a burial.
Are we ready Canada?
The composting of human remains makes sense on many levels, and it wouldn’t surprise me to see this practice spreading to other jurisdictions, including Canada. It may not be for everyone, but it’s hard to see a downside.
This CNN article and short video provide some more context to the adoption of human remains composting in Washington state.
Thanks for reading … Have a wonderful day,
A recent decision of Justice Dunphy recounts the wonderful history of Toronto’s cemeteries which ultimately grew into the Mount Pleasant Group of Cemeteries.
The decision begins at the beginning:
Forty-one years before Canada was launched as a nation and six years before the City of Toronto was incorporated, Thomas Carfrae the younger, Peter McPhail and a number of other inhabitants of what was then known as the Town of York brought a petition to the Legislative Council of Upper Canada. York’s population had surged after the War of 1812. It was approaching 2,000 and was still growing. However, it had only a Catholic and an Anglican cemetery while people of all faiths were arriving daily. They had passed the hat at a number of public meetings and raised $300 – a sum of money sufficient to purchase six acres of land a mile outside of town at the northwest corner of Yonge and Bloor. Their goal: to purchase the land and hold it for the purpose of a “general burying ground, as well for strangers as for the inhabitants of the town, of whatever sect or denomination they may be”. They judged that due to the recent rapid growth of the town “and the small portions of ground … allotted for the purpose of cemeteries”, there was a need.
They judged correctly. Their petition to the Legislative Council of Upper Canada found favour and a statute named “An act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned” was duly passed and received Royal Assent in 1826: Acts of U.C. 7 Geo. IV, c. 21. The land that came to be known as “Potters Field” was purchased and started operation as a cemetery soon afterwards.
The cemetery group became known as the Mount Pleasant Group of Cemeteries. It has grown to include 10 cemeteries, 4 crematoria, 14 mausoleums and 5 visitation centres on 1,222 acres of land containing the resting place of 600,000. The Mount Pleasant location arboretum is said to be “one of the finest tree collections in North America”. “Practically every tree that will grow in this climate is found here.”
The decision, Friends of Toronto Public Cemeteries Inc. v. Mount Pleasant Group of Cemeteries, 2018 ONSC 7711 (CanLII), relates to the current management of the cemeteries. Ultimately, Justice Dunphy found that the current trustees of the Mount Pleasant Group of Cemeteries were not appointed in accordance with the 1826 Act. He also found that some of the operations of Mount Pleasant Group of Cemeteries went beyond the scope of the statutory trust.
For a video account of the beginnings of Mount Pleasant Group of Cemeteries, click here.
For information about the Friends of Toronto Public Cemeteries, click here.
Thank you for reading.
It is that time of the year when media outlets release their “top” or “most popular” lists, like the Time 100.
I came across a rather interesting and topical list the other day called “The Most Obnoxious Celebrity Wills” by Ranker. This particular list features 24 celebrity Wills and I will excerpt some of the notable mentions here:
- Napoleon Bonaparte’s Will was first on the list. Apparently, his Will included a direction for his head to be shaved and for his hair to be divided amongst his friends.
- Harry Houdini asked his wife to hold an annual séance to contact his spirit.
- Philip Seymour Hoffman wanted his son to be raised in three different cities: New York, Chicago, and San Francisco.
- Charles Dickens gave directions for a particular dress code at his funeral.
- Fred Baur, the person who designed the Pringles can, wanted to buried in a Pringles can.
Turns out testamentary freedom is whatever you want to make of it but the enforceability of provisions like these are another matter.
Thanks for reading and Happy Holidays!
Here’s a scenario that’s becoming more common. A family member dies. The deceased had expressed a preference for cremation, and you, as the estate trustee, honour those wishes. The funeral home hands you a rather heavy velvet bag full of ashes and then, well, and then what?
Rest assured, you’re not alone. According to the Cremation Association of North America, more than 68% of Canadians are cremated at death, a number that’s expected to rise to nearly 75% by 2020. And if a friend or relative’s ashes are entrusted to you, you must decide the final resting place for the deceased.
You have more options than you might think. For example, you can:
- Bury the ashes in a traditional cemetery plot
- Place them in a structure designed to store ashes (a columbarium)
- Scatter the ashes – over private land, crown land, or even over lakes and oceans
While there are some restrictions on where you can scatter ashes, the laws are far more liberal than you might think. Here’s an overview of what’s permitted in Ontario.
If you are unsure about whether a location allows for the scattering of ashes, check in advance to make sure.
Travelling with ashes
For many people, the preferred location for the burial or scattering of ashes requires plane travel, and that adds an extra layer of complication.
While some airlines allow for cremated remains to be stored in checked luggage, others only allow these remains in your carry-on baggage. So, check with your airline before you fly. Either way, ashes must be in a container that can be viewed by security scanners. Think plastic or cardboard and not metal. You can find more information here.
Do you want to be creative? It’s truly amazing what people will do with the ashes of loved ones, from creating vinyl records, to making pencils, to the claim of Keith Richards that he snorted some of his dad’s ashes up his nose. This article has 27 ideas for those who are a bit more creative minded. It may not ultimately be for you, but it makes for entertaining reading nonetheless.
Thank you for reading,
Although rare, disputes over the final resting place of a deceased are not unheard of. Such a dispute was the subject matter of Mason v. Mason, a decision of the Court of Appeal of New Brunswick.
There, the deceased died at the age of 53. He was survived by his mother, and his wife of 13 months. At first, the relationship between the mother and the wife appeared to be harmonious. The mother wanted the son’s cremated remains buried next to his father, and the deceased’s wife agreed. Later, however, the wife had a change of heart, as she came to believe that her husband did not have a good relationship with his father. She asked the cemetery to agree to disinter the remains and have them buried in another cemetery. As the original plot was owned by the mother, the cemetery required the consent of the mother. The mother refused to consent.
The wife then applied for and obtained letters of administration. This would normally cloak her with the authority to dispose of the body. The wife then applied to court to exercise this right. The court refused to assist her.
The applications judge held that the administrator had the right to determine the proper burial or disposal of the remains. However, this right was limited to carrying out those actions. The applications judge concluded that the remains were properly dealt with, with the agreement of the mother and the wife. At the time, there was no administrator, and therefore the next of kin could determine the disposition of the body, which they did.
The wife argued that as administrator, she had an ongoing right to determine the burial place. Support for this proposition was found in the Saskatchewan case of Waldman v. Melville. There, the deceased’s sister wished to disinter the deceased, over the objection of the executor. The court held that “The rights of the executor continue after the burial of the body, otherwise it would be an empty right … and those who oppose the executor could disinter the body as soon as it was buried.”
The applications judge distinguished the Melville decision. The rights of an administrator appointed months after burial did not entitle the administrator to disrupt burial arrangements agreed to by the person in her capacity as spouse.
The Court of Appeal upheld the applications judge’s decision. They went on to hold that once the body was properly discharged, it could not be moved, under s. 15 of the Cemetery Corporations Act, without the written consent of the Medical Health Officer or the order of a judge. The Court of Appeal stated that the powers conferred on the court by s. 15 of the Cemetery Companies Act were discretionary in nature. A judge to whom an application is made under that section is required to consider and weigh all the circumstances and make the order he or she considers appropriate. In this case, the court found no valid reason for moving the body.
Thank you for reading.
With the growing number of common-law relationships, it is important to recognize the difference in family structures one might encounter when assisting LGBTQ clients. Not only do these differences impact the type of estate planning that a practitioner might suggest, it should also serve as a reminder of the importance of fully informing clients of the differences in legal rights that they and their partner will experience as common-law spouses.
Below are three steps LGBTQ individuals can take to ensure their wishes are carried out and their loves ones are provided for.
(1) Prepare Power of Attorney Documents
First, LGBTQ individuals should ensure they have properly planned for potential incapacity by having power of attorney documents in place. If you experience a serious health problem that leaves you unable to make decisions on your own, it is important that you appoint a trusted friend or loved one who will be able to communicate your health care wishes. A Power of Attorney for Personal Care is a document that describes your health care preferences and names a substitute decision-maker who can make health care decisions on your behalf when you are no longer able to do so yourself.
Appointing an Attorney can be especially important for transgender individuals. Having a Power of Attorney is one way a transgender individual can ensure that someone who is supportive of their gender identity manages their health care decisions. This is one step an LGBTQ individual can take to ensure that they will have a strong advocate on their side in their time of need when receiving medical care.
(2) Make a Will
Second, LGBTQ individuals should ensure their testamentary documents make proper provision for their children. Relying on intestacy laws to provide for their children should be avoided at all costs. Careful will planning should be undertaken which takes into account the unique needs and structure of the family.
One way of ensuring that children are properly provided for is to name the individual children being benefited in the will. Rather than leaving an equal share of the estate to “my children” or “my grandchildren”, the will should specifically name the individuals to be benefited. Careful will drafting is one step an LGBTQ individual can take to ensure their loved ones are provided for after their passing.
(3) Provide Instructions for Funeral and Memorial Wishes
Finally, to make certain their legacy is left intact, LGBTQ individuals should provide their instructions for both funeral and memorial planning. At common law, the right to determine the manner and burial of a deceased lies with the executor of the deceased person’s estate. In order to ensure that unsupportive family members do not control the manner of burial after death, LGBTQ individuals will want to carefully choose an executor for their estate.
By following these three steps, LGBTQ individuals can rest easy knowing their wishes, and their loved ones, will be protected to the best of their ability.
Thank you for reading … Have a wonderful day.
Suzana Popovic-Montag and Jacqueline Palef