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By:
Bernard Vézina, Attorney, CRHA
Lette & Associés, s.e.n.c, Montréal
May 2003
According to the Civil Code of Québec, “subject to compliance with the prescriptions of law, it is permissible to disinter a body on the order of a court, on the change of destination of its burial place or in order to bury it elsewhere or to repair the sepulture. Disinterment is also permissible on the order of a coroner in accordance with the law.” Court authorization is not needed to disinter cremains.
The Burial Act (hereinafter referred to as “the Act”) establishes that a person may request the disinterment of a body interred in a cemetery, notably with a view to the reinterment of this body in another part of the same cemetery, or in another cemetery. The request is presented to a judge of the Superior Court on a petition, accompanied by affidavits attesting the truth thereof.
The Superior Court order granting the petition shall be sufficient authority to the person in possession or having the charge or custody of the cemetery to allow the proposed disinterment.
However, before obtaining the permission of the judge to effect any such disinterment, the petitioner must show that he has obtained permission from the superior ecclesiastical authority of the diocese in which the cemetery is situated. This permission is requested by simple letter to the ecclesiastical authority, outlining the reasons for the disinterment request and accompanied by the payment of the required fees. The written response of the ecclesiastical authority authorizing the disinterment must be filed in support of the petition to the Superior Court.
In the case of disinterment of the body of any person who has died of any disease mentioned in section 8 of the Act (asiatic cholera, typhus, small-pox, diphtheria, scarlet fever, scarlatina or glanders), the petitioner must show that permission has been granted by the Minister of Health and Social Services and the judge shall allow the disinterment only subject to the precautions prescribed by the said Minister for the protection of public health.
In every case, the petitioner must include in the case file for the Superior Court the Attestation of Death (schedule SP-3), signed by a physician and stating the cause or causes of death of the person to be disinterred, to prove to the judge, as applicable, that this person did not die of any of the contagious diseases mentioned above and, consequently, that the permission of the Minister of Health and Social Services is not required.
The cause or causes of death stated on schedule SP-3 are often handwritten and illegible to the layperson. If such is the case, a transcription of the cause or causes of death must be obtained from the medical authority who issued the attestation. This transcription may also be obtained from the Institut de la statistique du Québec, which is the government agency responsible for managing these forms.
The petition to disinter is served on the cemetery where the body in question is currently interred, as well as on the Chief Coroner and any person whose presence is required for the complete resolution of the application for disinterment. Thus, depending on the case, it may be necessary to involve the liquidator of the estate and/or the heirs and close relatives of the person to be disinterred. What’s more, if the person to be disinterred is currently interred in a plot with other people, it may be necessary to involve the liquidator and/or heirs and close relatives of those persons as well.
In most cases, the Superior Court will grant the petition to disinter on the basis of the affidavits and documents filed in evidence, so long as the petition is not challenged. However, a petition to disinter can occasionally be challenged, as in the case of Barnfield v. Boulé, for instance.
Mr. Boulé was interred in a cemetery. Later, his parents and an uncle were interred in the same plot. His wife purchased burial rights in a plot in another cemetery. Since she wanted to repatriate her husband’s body so that he might one day rest next to her and his children and grandchildren, she filed a petition to disinter, which was granted. The sister of the deceased filed for revocation of the judgment, which was rendered by default. She argued, among other things, that she should have received notification of the petition to disinter, especially since her opposition to the disinterment was known. Also, she maintained that it was impossible to determine the precise location of the grave of the deceased among the four graves contained in the plot. She was opposed to disturbing the final rest of her parents.
The petition for revocation was upheld. In fact, the Court was of the opinion that if the evidence presented by the petitioner had been presented initially, it would have influenced the judgment that was rendered. The Court added that the family of a person interred in a cemetery has sufficient interest to oppose the disinterment of a close relative. In this case, repatriation the body of the deceased would disturb the final rest of his parents and one uncle. The evidence showed that it was impossible to distinguish the individual graves. In the circumstances, the Court ruled that it was not opportune to grant the petition to disinter.
Once the permission of the court is obtained, a possible date for the disinterment must then be confirmed with the cemetery management. Indeed, cemeteries no longer execute orders of this type at certain times of the year, for instance in winter. In addition, by virtue of section 20 of the Act, disinterment of more than one body at a time is not allowed between June 1 and September 1of any year. Still, the judgment authorizing a disinterment can be obtained at any time of the year since it is good for 10 years.
Transport of the disinterred body out of Québec
A body interred in Québec may be disinterred for reinterment in a cemetery outside Québec. However only a licensed funeral home may transport a body outside Québec (either within Canada or to another country). The transport of bodies out of Québec is governed by regulations and requires the authorization of a coroner.
According to the regulations, such authorization can only be given to a funeral director. The funeral director requesting the coroner’s authorization to transport a disinterred body out of Québec must enclose with the application a true copy of the Superior Court order authorizing the disinterment of the body. The Superior Court proceeding must therefore be completed before the funeral director can approach the coroner. Once the coroner’s authorization to transport the body out of Québec has been obtained, the funeral director then seals the disinterred body in a casket for transportation.
Before transporting the disinterred body to another country, the funeral director will also check with the embassy or consulate of that country to find out if there are any special legal requirements with respect to the transport and entry of the body in that country. For instance, in some cases he must prepare and sign an affidavit as a funeral director before proceeding with or assisting with the disinterment of the body, obtain an official translation in the language of the country of destination of the documents that will accompany the body during transport, etc.
Useful documents to have for a petition to disinter:
· Death Certificate of the person to be disinterred,
obtained from the Registrar of Civil Status;
· Attestation of Death (schedule SP-3)
issued by the physician/hospital;
· Will;
· Certificate of burial of the person to be disinterred,
issued by the cemetery;
· List of persons interred in the same plot as the person
to be disinterred, issued by the cemetery and, if applicable,
written confirmation from the cemetery that the disinterment
will not disturb the rest of the other persons interred in the
same plot;
· Designation of the cemetery and plot where
the person to be disinterred will be transported;
· Authorization of the ecclesiastical authority.
* The costs are those in effect in May 2003 and are subject
to change without notice. Please consult us to find out our
professional fees and obtain an estimate of the total cost.
If the petition is challenged, larger fees can be expected,
based on a predetermined hourly rate. The funeral director,
cemetery, and transportation charges etc. are extra.
For more information, please contact:
Bernard Vézina, Attorney, CRHA
Lette & Associés, s.e.n.c.
615 René-Lévesque Blvd. West, # 1010
Montréal (Québec) H3B 1P9
Téléphone: 514.871.3838
Fax: 514.876.4217
Cell phone: 514.943.3838
bvezina@lette.com
www.lette.com
Author’s Note: Please feel free to distribute this document and to pass on our address and phone numbers to anyone looking for a lawyer for an application for disinterment.
Outside Montréal: We practice law primarily in the judicial district of Montréal, but we have legal agents in every judicial district of Québec. If the body is interred in a cemetery outside the Greater Montréal Area, we will be pleased to prepare the case and mandate a legal agent to file the motion before a judge of the judicial district in which the cemetery is situated.
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