Family Goes to Court in Dispute Over Remains Already Buried

Written on behalf of Arbesman Hamilton LLP

David Mason died and was laid to rest in the summer of 2016; however,over a year later a family dispute over his remains continues to play out in a Saint John, New Brunswick courtroom.

A Disagreement over Where Burial Should Occur

Mason died in Florida. His mother had him cremated and buried in her family’s plot alongside her husband, Mason’s father, something his wife says she was not aware of even though she was the executor of his will and would normally be responsible for decisions.

Mason’s wife was in Florida but arranged and paid for his funeral. It wasn’t until she arrived back in Canada that she learned her husband’s ashes had been arranged to be interred in his mother’s family plot. An affidavit from Mason’s wife obtained by the Saint John Telegraph Journal, which has been covering this matter, reads “I was not given an option as to where David’s remains would be interred. I was also still grieving from the loss of my husband…I am very upset that David’s remains have been interred alongside his father.”

Mason’s wife now has an application before the courts seeking to unearth his remains and have them re-buried in another plot. His mother and sister object to the removal of his remains.

It is evident that this dispute has caused a great deal of emotional pain for the family.

Court filings in this matter contained an email from Mason’s mother stating “I do not in any circumstances give (Mason’s wife) or any other person (permission) to touch my plot!!!” One of Mason’s sisters spoke to the Telegraph Journal, saying “We were mortified, David is where David wanted to be. This will break (mom’s) heart.”

What Does Case Law Say?

An Ontario court looked an issue similar to this in a 1996 decision, Mason v Westside Cemeteries. In that situation, the Plaintiff retained a funeral home to care for his mother’s cremated remains while he considered what to do with them. When the Plaintiff’s father died four years later, he asked the funeral home to also care for the father’s remains until they received further instructions.

At some point, the funeral home informed the Plaintiff they would no longer be able to care for his parents’ ashes. He asked the funeral him to transfer the remains to a cemetery. When he went to retrieve the remains from the cemetery he discovered they had been misplaced. The funeral home believed they had been directed to bury the remains at the cemetery and had receipts of payment from the Plaintiff for charges relating to the transfer and burial of ashes. However, the cemetery had no record of receiving the remains and could not find them in storage. What happened to the ashes remained a mystery.

The Court found:

…nobody can have an ownership interest in a dead body although the next of kin may have a prima facie right to custody and control of the remains until disposition. Once the remains are placed in the cemetery, the cemetery is charged with the responsibility of their care. As against a stranger, the cemetery would have rights and responsibilities to exercise for the proper protection of the remains entrusted to its care. However, the next of kin have not lost all rights to the custody and control of the deceased person’s remains simply because those remains have been buried. In my opinion, the rights of the next of kin in this regard are not subordinate to any rights acquired by the cemetery. On the contrary, the next of kin continue to have the right to direct the disposition of the remains, subject of course to applicable statutory restrictions and to practical impossibilities created by nature and the passage of time.

We will be sure to follow this story as it develops.

The responsibilities of dealing with the death of a loved one can be stressful and complicated due to the logistics and strong emotions involved. The lawyers of Arbesman Hamilton LLP are experienced in assisting our clients with the task of serving as an executor of an estate. Contact us online or by phone at 416-481-5604 if you have been appointed as the executor of a will and are unsure of how to best carry out your responsibilities.