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On July 1, 2012, the Funeral, Burial and Cremation Services Act (the Act) came into force governing the day-to-day operations of all cemeteries in Ontario, including the sale and transfer of interment (or burial) rights.  The Act states that only an interment rights holder or a person authorized to act on their behalf has the right to inter any human remains in the related lot or plot in accordance with the cemetery by-laws.  But how does one become an interment rights holder? Is there just one way, that is, by purchasing a plot?

Smith v. Cataraqui Cemetery Company, 2013 ONSC 2468 (CanLII) examined this issue.  In 1869, brothers, Darius and Joseph Smith, purchased sixty-four plots for interment of human remains in the Cataraqui Cemetery, a historic cemetery located in Kingston, Ontario (the Cemetery),for $100.00, which was costly at that time.  In return for this payment, the two brothers received a Deed to Lots 100, 101,102 and 103 and Section “A” (the Smith Family Lots).  The 1869 Deed evidenced the transfer of the subject “Premises to said Darius Smith and Joseph Smith and their heirs and Assigns forever…” There is no evidence that Darius or Joseph Smith transferred their interment rights while they were alive or devised their rights by way of Will.

The case arose when three brothers, Allan, Carmon and Marvin Smith, who are the great, great grandsons of Joseph Richardson Smith, sought a declaration by the court that they and their descendants had the right to be buried at the Cemetery which the Cemetery was denying them.

The Cemetery and its predecessor had interred members of the Applicants’ family (the “Smiths”) since shortly after purchase of the lots in 1869.  Of the sixty-four lots purchased in 1869, thirty-one remain, assuming the remaining plots are traditional coffin size plots, rather than cremation plots which are much smaller and could accommodate potentially hundreds of interments.  At the time of the case, thirty-three descendants of the two original purchasers had been interred.

In addition to looking at relevant statutes, the court took a practical approach to resolving the dispute.  First, it rejected the Cemetery’s argument that the Applicants ought to serve all potential heirs to the Smith Family Lots (that is, a succession approach), which were potentially one thousand to two thousand individuals. On this point, the court agreed, as did the Cemetery and the Applicants, that it would be almost impossible to locate all the possible heirs and the cost of such a process would be significant.

 Second, the court noted that if relevant legislation were interpreted such that only interment right holders or those legally assigned interment rights can be interred in the disputed plots, succeeding generations of families who purchased plots in historic cemeteries will, in many instances, be unable to prove that they own interment rights.  This will, in turn, lead to the closure of many plots.  The court observed that it is very unlikely that any lineal descendant of Darius or Joseph Smith has the time or money to review each and every Will of any potential heir to determine the interment right holder.

In addition to practical implications, the court considered the intentions of the parties when the 1869 deed was purchased.  The court found that the parties to the 1869 Deed, namely, the Cemetery’s predecessor and the two Smith brothers, intended to permit transfer interment rights to heirs, the term heirs being broadly defined and not limited to immediate descendants or heirs-at-law.  In determining this, it observed that at least nine persons, in addition to Darius Smith who died in 1880, were interred in the Cemetery in Joseph Smith`s lifetime.  The court found this to be strong evidence of Joseph Richardson Smith’s intention that his lineal descendants, not simply interment right holders, would have the right to be buried in the Smith Family Lots.

Towards establishing intention, the court also noted that, as Mr. Darius Smith and Mr. Joseph Smith purchased sixty-four lots in 1869 and Joseph had four children, the only logical inference from the fact that the brothers purchased so many lots, is they intended future generations of “Smiths” to be buried in the sixty-four lots.

In essence, the court was persuaded that the Applicants are entitled, as heirs of Joseph Richardson Smith, to be interred in the Smith Family Lots at the Cataraqui Cemetery, upon payment of current care and maintenance fee (per interment right) in the amount of $1,040.00.


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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