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The recent disappearance of Malaysia Airlines Flight MH370 has sparked a lot interest in where the plane could be and what has happened to the 239 people aboard the flight.

Sadly, chances are that everyone aboard that flight has perished, and if the plane and its occupants is never located, inconvenience will mount on top of grief for the loved ones left behind to deal with the estates of the flight’s crew and passengers. Absent a body to prove that their loved one has passed away, various legal obstacles will present themselves before the surviving families can take any steps in dealing with their loved one’s property and final wishes.

When a person disappears and is presumed dead, it is possible in Ontario to have him or her declared legally dead so that family members or friends can wrap up the affairs of the missing person’s estate.

Prior to 2001 the Ontario Declaration of Death Act provided for declarations of death only in circumstances where it could be proved that a person had been missing for more than 7 years. The events of 9/11, and the numerous deaths and bodies never found after the collapse of the Twin Towers in New York City, caused the Ontario Government to reform the statute in 2002. Section 2.(4) of the Act was added. This section provides for the additional scenario of where the courts can issue a declaration of death absent proof of the person’s body when he or she has disappeared “in circumstances of peril”. The section reads as follows:

      Disappearance in circumstances of peril

      (4)  This subsection applies if,

(a) the individual has disappeared in circumstances of peril;

(b) the applicant has not heard of or from the individual since the disappearance;

(c) to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;

(d) the applicant has no reason to believe that the individual is alive; and

(e) there is sufficient evidence to find that the individual is dead.

Certainly the passengers aboard the missing Malaysia Airlines flight would qualify under this provision. If you cannot prove the circumstances under which your loved one disappeared were those of peril, then you must bring an application under subsection 2.(5) of the Act, the seven year absence provision. The case law has developed so that the exact date of death (which can be very important with regards to estate matters, see Re Miller) is an issue of fact for which the court retains the jurisdiction to determine based on the evidence before it.

Perhaps the main reason why the statute contains only two scenarios in which a person can be declared legally dead absent proof of a dead body has to do with the fact that sometimes people disappear on purpose and are far from dead. There are a number of stories of persons going underground to avoid legal obligations only to resurface years later. Some of them have been more successful than others at reclaiming their old lives.

Fortunately, the Ontario Superior Court retains the jurisdiction under the Act to revoke or amend any declaration of death that it makes.

Note, absent being able to prove a seven year absence, while a person remains missing, there is jurisdiction under the Absentees Act to make a an order for administration of the absentee’s assets and discharge of his or her obligations. Furthermore, under the Rules of Civil Procedure, R.1.03(1), a person who is absent under that statute is considered a person ‘under a disability’, allowing the court to appoint a Litigation Guardian to litigate for that person.

Unless the person disappeared in a situation of peril, you will likely have to wait the seven year period in order to have that person declared legally dead, however you do have the power to take steps as outlined above to put that person’s affairs in order and repay his or her debts and outstanding financial obligations.

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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