Following the son's death, his parents disagreed on how to handle his remains
The Alberta Court of King's Bench resolved a dispute over a deceased son's burial by denying the mother's injunction for cremation and affirming the father's legal right to proceed with the burial.
In CR v CM, 2024 ABKB 354, the mother sought an injunction to stop the father's burial plans, preferring cremation. The court's decision came just hours before the scheduled funeral.
The son tragically passed away on May 21. Following his death, the parents disagreed on how to handle his remains. The father arranged for a burial, while the mother applied for an injunction, arguing that they had previously agreed on cremation. The mother based her claim on a verbal agreement and a letter, which the father did not deny.
Given the urgency, the court encouraged the parents to reach a consensus. However, they failed to agree, necessitating judicial intervention. The court's task was to determine who had the legal authority to decide the disposition of the son's remains, not to choose between burial and cremation.
A previous court order granted the father primary residence and day-to-day care of the son, which the court interpreted as legal custody. Although the son had moved to live with his maternal grandmother due to conflicts with his father, the court held that the formal custody arrangement remained in effect at the time of his death.
Under Alberta law, specifically the Funeral Services Act, the right to control the disposition of human remains defaults to the person with legal custody. Despite recognizing that the parents had once agreed on cremation and that their living arrangements had deviated from the court's order, the judge found these factors insufficient to override the statutory priority given to the father.
The Court of King’s Bench referenced past case law and statutory provisions to assert that the legal custody holder at the time of death holds the authority for disposition decisions. Thus, the father, having legal custody per the court order, received the right to proceed with the burial plans.
The court concluded that while both parents were equally capable of making such decisions, legal statutes must be upheld. Consequently, the court denied the mother's application for an injunction and affirmed the father’s authority to decide on the burial.
