On Monday’s blog, I discussed the mechanisms available to Ontario courts under the Declarations of Death Act to deal with the estate of a deceased person who “returns from the dead.” In today’s blog, I thought it might be useful to look at similar provisions under Ontario’s Absentees Act and to distinguish between the purpose of each Act as well as the authorities of the court thereunder.
The most obvious distinction is evident in the titles of each Act. The Declarations of Death Act, unsurprisingly, concerns individuals that have been declared deceased by the courts. In contrast, and perhaps even more unsurprisingly, the Absentees Act deals with “absentees.”
An absentee is defined under section 1 of the Absentees Act as a person, ordinarily resident in Ontario, who “has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.” Similar to the analogous provision in the Declarations of Death Act, section 2 of the Absentees Act allows the Superior Court of Justice to declare a person to be an absentee if a “due and satisfactory inquiry has been made.”
The difference in finality of an order declaring an individual to be deceased rather than merely an absentee is also reflected in the authority given to the courts in dealing with an individual’s property under each Act. Once an individual is declared deceased, that individual’s property is subject to distribution in accordance with any testamentary documents that he or she may have left, such as a will. Without going into significant detail, the property rights of the testator as well as those of any beneficiaries will be substantially impacted as a result of a declaration of death. The courts will be reluctant to trigger these rights absent a conclusive determination of death.
As a result of the foregoing, the Absentees Act gives no authority to the courts to order distributions of property pursuant to a testamentary document. In effect, the authority of the courts over the property of an absentee is severely limited, at least until he or she is declared as such in accordance with the Declarations of Death Act, or unless evidence of his or her death is produced.
Rather than create circumstances that may trigger distributions of an absentee’s property, the Absentees Act may require an individual to instead ensure its upkeep while the absentee is, well, absent. Section 4 of the Absentees Act allows a court to make an order to ensure the “custody, due care and management” of an absentee’s property by a committee, if needed.
This appointee would essentially function as a caretaker of the absentee’s property. The committee has all of the powers and duties of a guardian of property under the Substitute Decisions Act, including the authority to expend the absentee’s own funds for the purposes of determining whether he or she is alive or dead.
Thanks for reading.
We sometimes hear reports in the news of people going missing. In such circumstances, what happens to their property? One option is for someone to apply to be a committee so that they may have the authority manage the missing person’s property in their absence.
Pursuant to section 1 of the Absentees Act, R.S.O. 1990, c. A.3, an absentee is a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts are unknown and as to whom there is no knowledge as to whether he or she is alive or dead.
An application may be made by pretty much anyone pursuant to section 2(2):
a) the Attorney General;
b) any one or more of the next of kin of the alleged absentee;
c) the person to whom the alleged absentee is married;
d) the person with whom the alleged absentee was living in a conjugal relationship outside marriage immediately before the absentee’s disappearance;
e) a creditor; or
f) any other person.
Pursuant to section 2(1), the Ontario Superior Court of Justice may declare a person to be an absentee if it is shown that “due and satisfactory inquiry” has been made into their disappearance.
In the case of Kamboj v. Kamboj, 207 CanLII 14932 (ON S.C.) Justice Quinn provides an informative and instructive discussion of what is required to find a person an absentee under the Act. Here are some of the factors to be considered with respect to whether satisfactory inquiry has been made:
a) Are the applicants the only close relatives of the alleged absentee?
b) Does the alleged absentee have other relatives or friends in Ontario or elsewhere and, if so, do they have relevant information?
c) Have inquiries been made at establishments that the alleged absentee frequented?
d) Have inquiries been made at any clubs, religious, community or social organizations to which the alleged absentee belonged?
e) Have inquiries been made with the alleged absentee’s family doctor?
f) Has a notice been published in a local newspaper, containing the alleged absentee’s picture and soliciting information in respect of their whereabouts? Did the disappearance attract media attention?
g) Did the alleged absentee have a will?
h) Did the alleged absentee have any creditors? If so, do they have relevant information?
If satisfactory inquiry has been made and the missing person is declared to be an absentee, a committee will be appointed. The committee will have to submit a management plan setting out how they propose to manage the absentee’s property.
If the Court is later satisfied that the person has ceased to be an absentee, it may make a declaration to that effect and set aside the order declaring the person an absentee for all purposes, except for things done in respect of the absentee’s estate while such order was in force.
Sharon Davis – Click here for more information on Sharon Davis.
In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2010-2011 was confirmed at the Section’s year end dinner on June 1, 2010.
I am very pleased to be the incoming Chair of the Executive. The Vice-Chair will be Ed Esposto. The balance of the slate is as follows:
Past-Chair: Suzana Popovic-Montag
Secretary: Melanie Yach
Newletter Editors: Dina Stigas/John O’Sullivan
Continuing Legal Education
Liaison: Joanna Ringrose/Eric Hoffstein
Regional Programming: Ed Upenieks/Mitchell Leitman
Members-at-Large: Ann Elise Alexander, Vincent De Angelis, Shael Eisen, Danielle Joel, Sean Lawler, Mitchell Leitman, Jane Martin, Deborah Petch, Wendela Roberts, Susannah Roth, Susan Stamm, Ameena Sultan, Sender Tator, Diane Vieira and Laura West.
I am looking forward to working with the Executive and having a very successful year.
Before turning the page on this past year, though, I would like to sincerely thank Suzana Popovic-Montag for all of her efforts, hard work and counsel as the Chair of the Executive.
Have a nice day.
Craig R. Vander Zee – Click here for more information on Craig Vander Zee.