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One of the legal responsibilities of the executor of an estate is to attend to the disposition of the deceased’s remains. In this country, that means burial or cremation and the executor is the person who has the right to decide the manner of disposition. The decision of the executor can override the wishes of members of the deceased’s family as well as the specific directions of the deceased. The law grants this right as a matter of public policy to ensure that the deceased’s remains are handled with dispatch for health reasons.

This, of course, could be a controversial decision in a family where not all of the members share the same beliefs and traditions. It is therefore imperative for a person making a will to discuss funeral instructions with members of the family to ensure that no discord is visited upon the executor who must make these difficult choices after death. One simple way to do this is to pre-arrange your funeral. This involves a visit to your local funeral director to discuss the options available and to provide vital personal information, which the director will need at the time of your death and which might not otherwise be readily available.

Your death must be properly registered with the province but the other information gathered by the funeral director will also assist in preparing newspaper notices or obituaries. This is also the time for you to specify the kind of funeral that you would like to have. These instructions can then be passed on to the executor by the funeral director, who will be much relieved that this burden has been taken away.

Funerals can also be pre-paid. This is not a mandatory requirement of pre-arrangement, but in its simplest form, it usually works like this: you determine all of the details of your funeral and you pay for your choice at today’s prices. The money is invested in a trust account or used to purchase an insurance product; both of which generate interest on conservative investments similar to GICs or Certificates of Deposit. These funds are protected by law and the interest that accrues on these funds will be used when you die to cover any increase in costs which, as you know, is the other inevitability of life. The surplus, if any, is returned to the estate. These pre-paid funds can be transferred to another location if you move or you happen to die in a place other than the one where you made your arrangements.

Several options are available to the average funeral shopper. The least expensive is the direct cremation. In the event of a person dying outside of a hospital, the body cannot be transferred until the coroner goes to the place of death and sees the body. The body cannot be transferred without a Certificate of Death document, provided by the coroner. The coroner needs to record the cause of death and any other information, which is necessary for provincial records. The body is then immediately transferred for cremation and the cremated body, or cremated remains, as they are called in the funeral profession, are delivered to the surviving members of the family and that is all there is to it.

While cremation is, in fact, the most popular form of disposition today, it does not restrict people from a visitation or service. Most people prefer a ceremonious departure, which can include casket viewing at a private gathering immediately before cremation and/or services in a church or funeral chapel later, with or without the presence of the cremated remains. Usually, the cremation occurs following a visitation and service.

The simplicity of the cremation is favoured by most, but the majority of people derive benefit from viewing the deceased as part of their bereavement process as it allows them to say their final goodbyes. The most expensive option usually involves the traditional earth burial in a casket, which is sometimes placed in a solid container in a cemetery plot. Whatever the choice, the process is made a whole lot easier if you discuss with your family the choices that you have made.

During the course of looking into these matters with a local funeral director, I was able to glean some interesting details. Your cremated remains can be buried on private property (hopefully your own).Your cremation urn can be buried or stored in a wall vault or niche, which is called a columbarium. There are very few laws about disposing of ashes. After the cremation process, they are quite sterile and therefore harmless to the environment. They can be cast to the wind (please stand to the windward) or over waters or lands, including national parks. Some municipalities have restrictions related to human dignity, which preclude the dispersal of ashes on city streets and sidewalks or off tall buildings.

Ashes can be divided into as many containers as there are family members who would like a memorial of the deceased. Anything that whirs, clicks, rattles or clanks is removed before or during the cremation process so that only the fine ashes remain. Ashes can be sent by Canada Post in an approved container but it is not recommended to send the ashes by post to foreign countries as they may have different transit regulations regarding ashes. It is also more likely that the mail can be misdirected. Your local funeral director knows all of these rules and/or can verify them for you but the recommendation you will receive is always to carry the ashes of the deceased personally to ensure that they reach their final destination.

Another variation on this theme is to store the ashes of the first spouse until the passing of the surviving spouse, following which the ashes of the two spouses can be co-mingled and remain so for all eternity. There is, however, one prohibition in this regard and that is the law that forbids the co-mingling of the remains of humans and animals or the storing of their remains together. So, no Rover, no Spot, no Felix or Sylvester or Tweety-Bird. I honestly don’t know how that could be regulated, although I could see how Trigger might be a problem.

Rich or poor, the law guarantees that all persons who die in a given municipality will be granted a decent and respectful burial or cremation. This is due in part to the generosity of many funeral directors who contribute their services to ensure that care is taken of everyone who passes away in our community.

The writer acknowledges the kind assistance of Patrick McGarry of Hulse, Playfair and McGarry Funeral Directors, who provided the background details to support this article.

John Johnson is a partner with the law firm of Nelligan O’Brien Payne LLP (, with offices in Ottawa, Kingston, Vankleek Hill and Alexandria.



[This article was originally published in the October 2006 issue of Fifty-Five Plus Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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