Parental Decision-Making Authority Following The Death Of A Child

A new Alberta case, CR v CM, 2024 ABKB 354, raises a tough question that no parent would want to face – if a minor child passes away and the parents cannot agree as to how to dispose of the child's body, who has legal authority to make the final decision?

This very question arose in CR v CM after the parties' 15-year-old son died. Initially the parents, who were divorced, had agreed to have the child cremated, but the father subsequently changed his mind and arranged to have the child buried near the father's family instead. In response, the mother applied for an injunction; the application was heard the day before the child's funeral.

Justice Whitling, the presiding judge, made it very clear that the court had no authority to decide how to dispose of the child's remains: "Such an authority would only arise in the event of a failure by the appropriate decision-makers to make that decision, such as by reason of a deadlock". Instead, the question that the court answered was who had the legal authority to decide how to dispose of the child's body.

In Alberta, the general regulation accompanying the Funeral Services Act, RSA 2000, c F-29 provides that the parent of a minor deceased child who had legal custody of the deceased at the time of death has the right to control the disposition of the child's remains, subject to an order of the court. Since the father in this case had been awarded primary residence and day to day care for the parties' son prior to his death, it followed that he had the authority to decide how the son's remains would be disposed of. Justice Whitling chose not to exercise the court's discretion to depart from the terms of the regulation, even though the parties were not actually following the court ordered parenting arrangements at the time of the son's death, and the parties had previously agreed to have their child cremated – ultimately, these circumstances did not justify a departure from the general rule.

In Ontario, there is no comparable legislative provision addressing who has authority to decide how to dispose of a minor child's body. The fact that a parent is awarded decision-making authority under the Children's Law Reform Act, RSO 1990, c C.12prior to the child's death does not mean that parent will necessarily have authority to decide how to dispose of the remains of their deceased child. Under Part III of the Act, "decision-making responsibility" for a child includes "responsibility for making significant decisions about a child's well-being," such as decisions related to health, education, culture, language, religion, spirituality, and significant extra-curricular activities. The legislation does not extend to posthumous decision-making authority.

Typically, an estate trustee is responsible for making decisions about the disposal of a deceased person's body and funeral arrangements. Should a dispute arise regarding a child's body, it will be up to the court to decide who has the power to make the ultimate decision; this decision could very well turn on who is most likely to be appointed as estate trustee. For example, in L.A.W. v. Rainy River (Family & Children's Services), 2005 CanLII 11812 (ON SC), a case involving a child who died while in the care of Rainy River Family & Children's Services, the court held that whoever was most likely to be appointed estate trustee under section 29 of the Estates Act, RSO 1990, c E.21could decide the child's burial arrangements. While subsection 29(1) provides that court may appoint next of kin of the deceased "as in the discretion of the court seems best," subsection 29(3) also permits the court to appoint someone other than the person who would have been entitled to a grant of administration under subsection (1) under "special circumstances". In light of the circumstances in that case – the fact that the child was in the care of Children's Services at the time of his death, that the order for Crown wardship had not expired, that his mother had had limited contact with the child for the last three years, and that a parent does not have "an overriding right to mandate burial in a particular fashion when it is the duty of the Society" – the court determined that Children's Services was most likely to be appointed estate trustee and could decide how to dispose of the child's body.

While there are no guarantees that a parent with decision-making authority will ultimately determine how to dispose of a child's body in cases where the parents disagree, the court certainly could authorize that parent to determine how to dispose of the child's body. Ultimately, it appears that the resolution of this question will turn on whether the court thinks it likely that the parent with decision-making authority would be appointed as estate trustee for the child's estate.

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