Issues surrounding the control of human remains and burial sites may involve substantial emotional, cultural, and legal issues. Most relevant provincial legislation across Canada gives the executor the capacity to decide how and where the deceased’s remains are to be disposed. However, British Columbia legislation has adopted a unique approach to the disposition of a person’s remains by taking into account the deceased’s wishes.
Section 6 of the Cremation, Interment and Funeral Services Act (“CIFSA”) requires that the person who has the right to control the disposition of the remains must follow a preference given by the deceased in writing if (a) the preference is stated in a will or preneed cemetery or funeral services contract, (b) compliance with the preference is consistent with the Human Tissue Gift Act, and (c) compliance with the preference would not be unreasonable or impracticable or cause hardship.
Subject to the deceased’s preference, generally, the executor of an estate has control over the burial, if so named. When no personal representative is named in the will, s. 5(1) of the CIFSA establishes a list for determining the priority of who can make decisions regarding final arrangements. If the person at the top of the priority is unavailable or unwilling to give instructions, the right passes to the next person in accordance with s. 5(2) in the following order, for example to the spouse, or adult child, adult grandchild etc.
Disputes can arise when a person believes they should have control over a deceased’s remains or burial site. Section 5(4) allows a person claiming that he or she should be given the sole right to control disposition of the human remains or cremated remains to apply to the Court for an order regarding that right. The legislation sets out certain criterion a Court is to follow when hearing an application under s. 5(4). Where such an application is made, the Court must have regard to the rights of all persons having an interest and without limitation, give consideration to: the feelings of those related to the deceased; the rules, practice and beliefs respecting any religious beliefs of the deceased; any reasonable directions given by the deceased; whether the dispute in question involves family hostility or a capricious change of mind respecting the disposition.
The control over a loved ones’ ashes came before the British Columbia Supreme Court in Re Popp Estate (2001 BCSC 183), which was decided under the now repealed, Cemetery and Funeral Services Act (“CFSA”), but which is similar in effect to the CIFSA. In Popp Estate, the deceased wife was cremated and the executor husband buried the ashes with the remains of his father in the grave plot that was designed for his parents. The husband planned to remove his wife’s ashes when his father passed away. Approximately five years later, the deceased’s sister applied to have the ashes disinterred and moved to a columbarium. Numerous family members of the deceased expressed their opinion that the deceased wished to have her ashes placed in a columbarium and feared being buried under ground.
The Court considered whether the request for a disinterment involved family hostility or a capricious change of mind. The Court relied on a plain meaning of “capricious” and decided that the husband’s plan to remove his wife’s remains from the grave site with no plan on what to do with them was irregular and unpredictable. The Court decided to intervene and order the remains to be disinterred and placed in a columbarium thus ensuring a final resting place.
In Wiebe v. Bronstein (2013 BCSC 1041), the non-executor plaintiff brought an application under s. 5(4) of the CIFSA for the sole right to control the wording on a Jewish gravestone. The Court accepted evidence that the Jewish tradition was to hold an “unveiling” ceremony for the deceased approximately one year after the death at which time the gravestone is placed at the grave. The plaintiff argued unsuccessfully that the unveiling of the plaque is an integral part of the burial process and therefore should fall under the ambit of s. 5 of the CIFSA.
In the decision of the British Columbia Court of Appeal in Kartsonas v. Kartsonas Estate (2010 BCCA 336) the dispute was who should have control of the deceased’s funeral and disposition of the human remains. The children of the deceased wanted their father buried in accordance with the Greek Orthodox religion, while the deceased’s niece disagreed. The Court preferred the evidence of the children and gave them the sole right to control the disposition of their father’s remains in accordance with their religious beliefs based on the wording of the CIFSA.
These cases indicate the highly charged nature of disputes which can arise with respect to burial. Whenever possible, a mediator should be engaged to attempt to resolve these very difficult disputes.