Who Has Control Over the Disposition of Human Remains After Death?

The Alberta Court of Appeal recently ruled on an unusual case that raised the question of who has control over the disposition of human remains after a child’s death.

What Happened?

An Alberta couple’s son and grandchild were found dead under “suspicious circumstances”. The police investigation file remained open and a definitive cause of death had not been determined.

The mother and father had divorced in 1994 and their relationship remained acrimonious.

After the deaths, the mother did not believe that her son suffered from mental health or substance abuse issues and, therefore, believed that there must be another medical explanation for the tragedy.

The deceased son’s remains were cremated within one week of his death. Samples from his brain, however, were retained by the Chief Medical Examiner. As such, the mother wished to have the brain samples tested by a private lab for any brain diseases, including chronic traumatic encephalopathy, and signed the Medical Examiner consent form for that purpose. The mother believed that testing was imperative to bring some dignity to their son’s death and closure to the families.

The father, however, had refused to sign the consent form. He was opposed to further invasive testing being conducted and wished to maintain the integrity of their son’s remains. He believed there was an absence of clear evidence about what the further testing would accomplish.

The mother applied for an order directing the father to sign the consent form or, alternatively, dispensing with the father’s consent, relying on affidavit evidence and on certain enumerated provisions in the Estate Administration Act and the Surrogate Court Rules.

The chambers judge granted the mother’s application and directed the father to sign the consent form or his consent would be dispensed with.

The father appealed the decision, arguing that s. 36 of the General Regulation to the Funeral Services Act (“General Regulation”) was the applicable statutory authority that governs the dispute between the parties. Section 36 establishes an order of priority as to who has control over the disposition of human remains, which subsections state:

(2) Subject to an order of the Court, the right to control the disposition of human remains or cremated remains vests in and devolves on persons in the following order of priority:                  …

(d) a parent of the deceased;

(3) If, under subsection (2)(c) to (h), the right to control the disposition of human remains or cremated remains passes to persons of equal rank, in the absence of agreement between or among them, the order of priority begins with the eldest person in that rank and descends in order of age.

The father argued that the judge erred in law when she departed from the prescribed priority accorded to him by virtue of his being the older parent of the deceased without any evidence to support that departure.

The mother responded by arguing that the chamber’s judge made no error in departing from that statutorily prescribed priority and allowing the testing to proceed.

Court of Appeal Decision

The court disagreed with the father’s main arguments that there was no factual basis to support the chambers judge departing from the statutory priority accorded to the father and that there was no evidentiary basis as to why the testing should proceed or what such testing would accomplish, stating:

“It is fair comment that neither party advanced any medical evidence suggestive of a probable CTE connection – such as a history of concussions. It was not disputed, however, that the parties’ son had never been diagnosed with any sort of mental illness; nor did he have any known substance abuse or addiction issues.”

The court agreed with the chamber judge’s conclusion that any harm done by further testing of the already preserved specimen was outweighed by the irreparable situation of losing all opportunity to conduct further testing for conditions including a pathological or organic neurological disorder.

Additionally, s. 36 expressly contemplates that a judge may depart from the statutory priority accorded to the father in the General Regulation. The court found that, in the unique circumstances of the case, the chambers judge did not commit a reviewable error by directing the father to sign the consent form or, failing that consent, dispensing with his consent.

As a result, the court dismissed the appeal and the testing would proceed.

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