Declaring a Missing Person Deceased in Ontario
When a court in Ontario legally declares a person dead, there are important implications which follow the ruling that may be serious and, in some cases, irreversible. The courts are therefore reluctant to rule a missing person deceased when there is no body to prove death. This uncertainty is stressful for families and interested parties of the missing person, and as it stands, there is a limited amount of substantive case law to establish precedent in these situations.
There is however a statutory provision in Ontario to guide the courts when interested parties petition for a missing individual to be declared deceased. The Declarations of Death Act underwent an important amendment in 2002 which was a response to the tragedy of 9/11 where hundreds of bodies were never recovered. Prior to 2002, the legislation was firm, stating that a person may be declared dead if they have been missing for no less than 7 years and have not been seen or heard from in the 7 years by any interested party. Since 2002, the Act was widened to consider unique cases for individuals who have been missing for less than 7 years.
2002 Amendment – ‘Circumstances of Peril’
Section 2(4) says the court may declare a missing person dead if they are satisfied that:
- The individual has disappeared in circumstances of peril
- The interested party has not heard of or from the person since the disappearance
- To the interested party’s knowledge, after making reasonable inquiries, no other person has heard of or from the missing person since the disappearance
- The interested party has no reason to believe the missing person is alive
- There is sufficient evidence to find that the individual is dead
The task of interpreting what ‘circumstances of peril’ means is difficult, but the courts have established that an individual is at peril when certain threshold factors external to the individual are met. Each case turns on its own facts, so the external factors which are relevant will be unique in each case. The 2008 case of Poole forced the court to interpret what a ‘circumstance of peril’ was, when a suicidal man who left a note behind went missing. The court declared him deceased, and it was ruled that situations of serious and immediate danger constituted a circumstance of peril, for example, where a person goes missing from a boat and an empty boat is found, or when a plane goes missing and no bodies are found. Therefore, events such as 9/11, plane disappearances, and natural disasters are likely to give rise to a circumstance of peril.
However, in 2012, Re Puffer produced a different ruling. Despite the facts being oddly similar to those in Poole, the court did not declare the individual deceased distinguishing the case from Poole, citing the fact that he had not left a note. The judge said that a person is at peril due to events external to them, like natural disasters for example. So, the judicial interpretation of section 2(4) is not strict, as each ruling will rely heavily on the facts of each case. What we know is that the case law is developing and will continue to do so for some time.
7-Year Requirement
When a missing person does not meet the circumstance of peril threshold, there are certain things the court considers that ought to have taken place within the 7-year period:
· Proof that interested parties made reasonable inquiries to find the missing person
· Proof that interested parties have no reason to believe the missing person is alive
· Sufficient evidence to find that the missing person is dead.
Before making a declaration of death, the court considers many conflicting interests. They consider the interests of the missing person since it is possible they disappeared on purpose and have chosen not to be found. The court considers the right of third parties against the missing person’s rights, and the court must also consider the general interest of society, which may require that property does not remain vacant without someone representing it. A person declared dead loses all rights to their own property, which is why the court ensures due diligence before declaring a person deceased. So, even though a person may have been missing for at least 7 years, the court will thoroughly examine the ‘reasonable inquiries’ made to find the missing person to prevent any abuse of legislation.
Estate Administration
If proving a 7-year absence while a person remains missing is tricky, the Absentees Act provides relief to obtain a court order to declare the missing person to be an absentee. An absentee is a person:
· Who has disappeared from their usual place of residence in Ontario
· Whose whereabouts are unknown and there is no knowledge as to whether they are alive or dead.
Once a missing person has been declared an absentee, the court may make an order for the distribution of their property. This will allow the surviving family members and interested parties to put that person’s affairs in order until a declaration of death can be made.