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From time to time, courts insert fairness and equity principles into their judgements, taking interesting positions that make for stimulating reading to say the least. In Smith v. Cataraqui Cemetery Company, 2013 ONSC 2468 (CanLII), the court seemed to take a moral stand defending a family’s expectation to choose their burial place.  Furthermore, the wording of the judgment seemed to acknowledge the sacredness of death.  It also implied that respect and dignity in death is partially expressed by allowing individuals to choose their final resting place within the reasonable confines of the law.

As you may recall from our recent post, Familial Burial Rights, Smith v. Cataraqui Cemetery Company was about three brothers who were great, great grandsons of Joseph Smith, one of two purchasers of 64 burial plots in a historical cemetery.  These three brothers brought an application to declare that they had the right to be buried with deceased family members in the purchased lots as they were lineal descendants of Joseph Smith i.e. heirs who were afforded such right on the face of the deed for said plots.

In response to the Cataraqui Cemetery Company (the Cemetery) who denied such rights, the court found that the Cemetery had, by its actions, permitted generations of the Smith family, including mother and father of the three Applicants, to believe that they are legally entitled to be buried in the Smith Family Lots.  Furthermore, it was found that succeeding generations of the Smith family acted upon the Cemetery’s interpretation of interment rights:

In my view, the Smith family and the Applicants, in particular, are prejudiced by the change in position of the Cataraqui Cemetery.  The Applicants obviously feel very strongly and wish to be buried in the lots traditionally reserved for the Smith family.  The Applicants’ mother and father were buried in the Smith Family Lots in the 1990’s.  Had the Respondent taken the position that Ronald and Laura Smith (the Applicants’ parents) were not legally entitled to be interred in the Cataraqui Cemetery in the Smith Family Lots, they may well have chosen another location, thereby permitting their burial site to be sufficient size that their sons could also be interred beside them, at a later date. Further, they may have chosen a site large enough to accommodate their grandchildren.  The evidence in this case is clear that four generations of Smiths (except for the Applicants’ grandfather) placed great weight on being buried in a communal family setting.  It is extremely prejudicial to these Applicants to now be told, notwithstanding the fact thirty-one interment sites remain in the Smith Family Lots, they are not entitled to interment.

Here, the language the court uses seems to indicate that a loss is actually suffered where individuals’ burial expectations are unfilled. It’s not clear why the court feels that this is prejudicial when at the relevant time, the individuals will be deceased and arguably will not be aware of where they are buried.  No religious beliefs were expressed in the judgment on this point but the court obviously felt that the wishes and intentions of family members expressed before death have moral and perhaps ethical value.

The court went on to say that the current position of the Cemetery is unfair to the Applicants and to Ronald and Laura Smith, who obviously now have no recourse as to the location of their remains.  It observed that, the Cemetery had, over the years, allowed various generations of Smiths to be buried in the Smith Family Lots (over twenty Smiths since 1869) without formal proof that they are internment right holders, inducing them to believe internment would be allowed.  After the fact, the rules seemed to change.  The court stated that prejudice is caused to the Applicants by the change in position after so many years and the Cemetery`s course of action prevents it from now insisting the Applicants prove they are the interment right holder of the said lots.

The court observed and seemed to give weight to its conclusion that the Smith brothers placed value upon being buried as a family, since they purchased the lots enabling future family members to be buried in the same area.

Again, it’s interesting that the court would support the right to choose the location of one’s remains.  This is particularly noteworthy given the heavily regulated context of the “death industry”, that is the laws governing funerals, burial, cremation, succession, etc., within which the judgment was written.  For example, in Ontario, human remains are required to be disposed of in a certified cemetery and cannot be disposed of on individual private property, regardless of the wishes and intentions of individuals and families.


Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters.  She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process.  This is quite often enlightening for her clients and facilitates individually tailored services.  If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.

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