Category: ESTATE ADMINISTRATION

Learn how to repatriate a body or ashes to Canada under Ontario law. Step-by-step guide on international law requirements, estate litigation issues, and the costs of bringing a loved one’s remains home across different countries.

Bringing a Loved One Home

If you are searching for how to repatriate a body to Canada, how to bring ashes to Canada, or what the laws of different countries require when a loved one dies abroad, you are not alone. Families facing the sudden loss of a loved one overseas often feel overwhelmed. On top of the emotional pain, there are urgent practical and legal steps to take.

The process of repatriating human remains involves navigating international law, Ontario law, and the estate obligations of the deceased. In some cases, disagreements can even result in estate litigation over who has the authority to make these decisions.

This guide explains how to bring a loved one’s body or ashes home to Canada, what documents you’ll need, what it costs, and how to avoid legal disputes.

Step 1: Notify Local Authorities Abroad

The first step is to notify local authorities in the country where the death occurred. They will issue a death certificate, which is legally required under both international law and Canadian entry regulations, before remains can be transported.

If the death was sudden, accidental, or suspicious, additional paperwork like police reports or autopsy records may be needed, depending on the laws of that country.

Step 2: Contact the Canadian Embassy or Consulate

The nearest Canadian embassy or consulate can:

1. Explain the international law requirements for moving remains.
2. Help you understand how the laws of different countries affect the process.
3. Provide a list of approved funeral homes and repatriation specialists.
4. Advise on documents required when registering the death in Ontario.

Step 3: Work With Funeral Homes and Repatriation Specialists

A local funeral home or international repatriation specialist will:

1. Comply with the local laws,
2. Prepare and embalm the remains (if required).
3. Secure a transit permit.
4. Arrange an airline-approved casket or urn.

In Canada, a funeral home operating under Ontario law will then take over, ensuring that burial, cremation, or memorial services are conducted properly.

Step 4: Secure the Required Documents

To bring a body to Canada, families usually need:

1. Local death certificate (with certified translation if required).
2. Transit permit.
3. Embalming certificate.
4. Funeral director’s compliance letter.

For bringing ashes into Canada, you’ll need:

1. Cremation certificate.
2. Sealed urn certificate.

Step 5: Arrange International Transportation

Airlines enforce strict international regulations when transporting remains. Typically:

1. Bodies are shipped as cargo in airline-approved containers.
2. Ashes may be carried as hand luggage in a non-metallic urn with documents.
3. Rules differ under the laws of different countries, making embassy guidance essential.

Step 6: Estate and Legal Considerations in Ontario

Once remains arrive in Canada, Ontario estate law determines who has the authority to make decisions. Generally, the estate trustee (executor) has legal authority over funeral arrangements and estate expenses.

If family members disagree, this can lead to estate litigation in Ontario courts. Common disputes involve who pays for repatriation, burial decisions, or reimbursement of expenses.

Costs of Repatriation

The cost of international repatriation of a body to Canada often ranges between $10,000–$20,000, depending on the country and flight availability. Cremation abroad and transporting ashes are usually less expensive.

If travel insurance is in place, the estate may not need to cover these expenses directly. Without insurance, repatriation costs are normally treated as an estate expense.

Caselaw: Taymaz v. Enache Funeral Loan Agency Dispute

This 2017 case was heard in the Ottawa Small Claims Court.  Marius died suddenly during a holiday in Romania, and his widow, Sandra, urgently needed funds, specifically a $25,000 loan to cover the cost of bringing his body back to Canada for burial in Ottawa. Sandra instructed her mother-in-law to ask her friend and landlord, Dr. Taymaz, for the money.

Dr. Taymaz advanced the funds after being assured by both women that she would be repaid with 4% interest once the deceased’s house and truck were sold. When the widow and the Estate failed to repay the debt, Dr. Taymaz sued. The judge ultimately found that the mother-in-law was acting on behalf of the widow, Sandra.  The loan was given to pay for the necessary funeral arrangements.

In Ontario, the law treats funeral expenses as the first debt an estate (the deceased’s money) must cover.  The court found that both the widow, Sandra and the Estate benefited from the loan. As a result, Dr. Taymaz won the case and was granted judgment for the full $25,000, plus interest, which both Sandra and the Estate were responsible for paying.

Frequently Asked Questions (FAQ)

1. How long does it take to repatriate a body to Canada?: Usually 5–14 days, depending on paperwork and laws of different countries.
2. Can ashes be brought to Canada on a plane?: Yes, cremated remains can usually be carried as hand luggage in a sealed urn with proper documents.
3. What documents are needed for international repatriation?: Death certificate, embalming certificate, transit permit, and funeral director’s letter.
4. Is embalming required by law?: Yes, under international health laws, embalming is required unless cremation takes place abroad.
5. How much does it cost to repatriate a body to Canada?: $10,000–$20,000 for a body, less for ashes.
6. Does travel insurance cover repatriation?: Often yes, otherwise costs fall to the estate.
7. Who decides on funeral and repatriation under Ontario law?: The estate trustee (executor) has authority. Disputes may lead to estate litigation.
8. Who arranges flights for repatriation?: Funeral directors or repatriation specialists.
9. Can Canadians be repatriated from any country?: Yes, but rules vary under the laws of different countries.
10. Can family members accompany the remains?: Yes, family can travel on the same flight, though the remains are shipped separately as cargo.

Final Thoughts

Repatriating a loved one to Canada is both emotionally and legally complex. It involves international law, the laws of different countries, and compliance with Ontario estate law. Families must also manage estate responsibilities, which can sometimes lead to disputes requiring estate litigation.

At Derfel Estate Law, we help families across Ontario navigate these challenges. Whether you need advice on estate matters, litigation risks, or guidance under Ontario law, we are here to provide compassionate support.

Need Help with Estate or Repatriation Issues?

At Derfel Estate Law, we guide families through estate matters, repatriation issues, and Ontario law.

• Experienced in estate litigation and disputes over funeral/repatriation expenses
• Knowledgeable in Ontario estate law and how it applies to repatriation costs
• Compassionate legal support for families dealing with loss across different countries

Contact us today to schedule a consultation and get clear guidance on your next steps.

Estate administration is the process of organizing and distributing the assets of an estate to the beneficiaries. The executor is responsible for estate administration, including going through the probate process in Ontario, where needed. 

Although still commonly used, in Ontario the term “probate” stopped being officially used on April 1, 1995 (no joke…). This is when Ontario introduced the Estates Administration Act, 1995, which replaced the Estates Administration Act, 1990. The new law was introduced as part of wider reforms designed to streamline and update estate administration in Ontario.  

The new Estate Administration Act replaced the term “probate” with “Certificate of Appointment of Estate Trustee”. The new term reflects the replacement of “executor” or “executrix” with the term “estate trustee”. In this article we will not refer to “probate”, rather we will use the proper term “Certificate of Appointment of Estate Trustee” or “Certificate”. 

What Types of Certificates Can the Court Issue? 

There are a number of Certificates that the court can issue. For the purpose of this article, we will address the two types most commonly issued and that beneficiaries of an estate are likely to deal with, which are: 

1. Certificate of Appointment of Estate Trustee With a Will. This type of Certificate is issued when the deceased left a valid will, and the named estate trustee applies to manage the estate.
2. Certificate of Appointment of Estate Trustee Without a Will. This type of Certificate is issued when the deceased dies intestate (without a will), and an eligible person (often a spouse or next of kin) applies to be estate trustee.

Clients often ask, what is the process to obtain a Certificate, with or without a will. Below we answer some of the most common of these and provide some helpful guidance.

What is a Certificate?

Obtaining a Certificate is the formal legal process through which the court: 

1. 1. • Grants a person the authority to act as the executor of an estate 
   2. • Confirms an executor’s authority to act on behalf of the deceased 
   3. • Formally confirms that the deceased’s will is their last will and testament 

When Should a Certificate be Obtained? 

In Ontario, a Certificate is not required in every circumstance, and not every estate trustee must go through the appointment process. 

A Certificate is needed where: 

1. 1. • Court approval is required in order to validate a will; 
   2. • There is a dispute over estate trustees (e.g. the will does not name an estate trustee or there is a debate over who the estate trustee(s) should be); 
   3. • Some beneficiaries named in the will are not able to provide legal consent; 
   4. • Proof of an estate trustee’s authority is required (e.g. a land registry office who needs a Certificate before land can be transferred from the deceased’s name into the name of someone else). 

How Much Does the Court Charge When You Apply for a Certificate?

In Ontario, the Estate Administration Tax (EAT) is calculated based on the total value of a deceased person’s estate at the time of their death. The EAT is what is commonly referred to as the “Probate Fee”; this term is no longer formally used. No EAT is payable for estates valued at $50,000.00. For estates valued at over $50,000.00, the EAT is calculated at $15 for every $1,000 (or part thereof) of the estate’s value exceeding $50,000.00. This amount translates to 1.5% of an estate’s value over $50,000.00. The Estate Administration Tax is taken from the estate before any assets are distributed to beneficiaries. 

How Long Does it Take to Apply for a Certificate? 

An application must first be prepared. To do this, all documents required must be gathered and the value of the estate must be determined. 

Relevant documents will include: 

1. 1. • The deceased’s original will; 
   2. • Any supplemental document that changes or revokes the will or any part of the will; 
   3. • Proof of death (i.e. death certificate). 

It may take some time to locate all of these documents. Once the application has been prepared it must be filed with the Ontario Superior Court of Justice in the jurisdiction where the deceased last lived. 

Once the application is filed, the Court will need time to process it. The length of time required will vary widely depending on which jurisdiction the Court is in and may take up to 6 months. 

Once a Certificate is obtained, it is the estate trustee’s responsibility to administer the estate. In general, the rule of thumb is that an estate trustee has one year to administer an estate (with some exceptions). 

Should I Consult a Lawyer? 

If you have been named an estate trustee it is advisable to speak with a knowledgeable estates lawyer as soon as possible, regardless of whether you believe the estate will be simple or straightforward. It is important that you fully understand the scope of your duties and obligations. 

A lawyer will:

1. 1. 1. Help you understand responsibilities;
      2. Highlight any risks and liabilities you must be aware of (including significant personal and financial liability);
      3. Help you gather all necessary paperwork and complete all relevant forms; and
      4. Provide guidance and advice throughout the probate and estate administration process.

Also, a lawyer can also guide you through any will challenges or other challenges that you may face. 

The highly experienced Toronto estates lawyers at Derfel Estates Law regularly advise trustees and beneficiaries.  Call us at 416-847-3580 or contact us online to schedule a consultation. 

In Drennan v. Drennan,[1] Justice Myers of the Ontario Superior Court made a $60,000 costs award against the respondents in an application and concluded that their conduct amounted to an abuse of process and resulted in a loss of value to the estate. This case serves as a harsh warning to parties who act in bad faith, engage in “scorched earth” litigation tactics, and abuse the litigation process.

Facts

This dispute arose over the estate of John Drennan (the “Deceased”). Under his Will, his estate was to be divided as follows: 50% to his daughter, Melissa; 25% to his son, David; and 25% to the two children of his son who predeceased him, Jessica and Nicholas. His son was named as estate trustee. His son and grandchildren, the respondents in this matter, objected to this distribution and argued that the estate should be divided amongst them equally in thirds.

Melissa began this litigation to remove David as estate trustee or, alternatively, to appoint an Estate Trustee During Litigation (“ETDL”). In response, the respondents alleged that the applicant stole from the Deceased during his life and coerced him into signing a Will; however, they refused to put any of these allegations in writing.[2]

Decision

At the initial hearing, the respondents represented themselves and, despite failing to deliver their materials prior to the hearing date, were permitted to participate. Justice Myers granted the applicant’s request and ordered the appointment of an ETDL. He also advised the respondents of the procedural steps required to participate in the litigation, including delivering the necessary materials and filing notice of appearances.[3]

The respondents failed to follow these steps. They did not approve the formal order appointing an ETDL, did not deliver a notice of appearance, and did not commence litigation to challenge the Deceased’s Will. Moreover, by failing to act as the named estate trustee or facilitating the appointment of an ETDL, David allowed the mortgage on the Deceased’s home to fall into arrears, resulting in costs to the estate when the mortgagee moved to enforce its rights.[4]

At the next hearing, Justice Faieta appointed a new estate trustee. The only remaining issue in the application for Justice Myers to determine was costs.[5]

Costs Award

The applicant incurred nearly $65,000 in costs as a result of the application.[6] As the applicant was successful, she was entitled to reimbursement for a portion of her costs. In determining the quantum of costs to be awarded, Justice Myers noted that the following legal principles applied:

• The fixing of costs is within the discretion of the motion judge and attracts a high degree of deference;[7]
• Costs on a substantial indemnity basis are only available “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”;[8] and
• Conduct that justifies an enhanced costs award includes conduct in the proceedings as well as the circumstances that gave rise to the litigation.[9]

Applying these principles, Justice Myers concluded that “[i]t seems that the respondents just wanted to make scurrilous allegations and then to delay so as to hurt the applicant even if it prejudiced them. This is an abuse of the litigation process and deserving of enhanced costs.”[10] Justice Myers also noted that David’s inaction in acting as estate trustee or facilitating the appointment of an ETDL resulted in financial losses to the estate. As such, he ordered that the costs of the mortgage enforcement be paid by the respondents.[11]

The applicant also sought repayment of the interest on the litigation loans she incurred due to this application and David’s failure to administer the estate. Justice Myers agreed and confirmed that the applicant did not need to inform the respondents of her need to take out litigation loans, nor of her intention to hold the respondents liable for the interest on the loans.[12]

Although Mr. Drennan was the principal bad actor in this litigation, Justice Myers determined that all three respondents were jointly and severally liable for the costs, given that the other two respondents stood to gain from Mr. Drennan’s actions and “stood in common cause” with him.[13] Justice Myers ordered the respondents to pay $60,000 in costs to the applicant out of their share of the estate, after the costs of the mortgage enforcement and payment of the interest on the applicant’s litigation loan were taken from their shares.[14]

Conclusions

This case highlights the cost consequences for parties who act in bad faith to delay litigation and drive up the legal costs for opposing parties. These litigants run the risk of substantial costs awards that may include additional costs, such as interest on an opposing party’s litigation loans.

In this decision, Justice Myers also acknowledged the leeway given to unrepresented parties in procedural matters: “[i]n the court’s effort to assist unrepresented parties, we all too often ignore procedural niceties. Judges, including me, repeatedly let the respondents participate and make unsworn, nasty allegations while failing to take even the most basic steps required to them.”[15] However, while the courts may be more lenient with unrepresented parties, this does not give unrepresented parties a free pass to ignore court procedure. If self-represented litigants repeatedly refuse to follow the rules, they will face significant exposure in costs awards.

If you have any questions about the potential costs of estate litigation, please contact experienced estate litigation lawyer, David Derfel, at 416-847-3580, ext. 220 or david.derfel@devrylaw.ca, or our other lawyers at Derfel Estate Law.

This blog was co-authored by Articling Student, Leslie Haddock.

This article is intended to inform. Its content does not constitute legal advice and should not be relied on as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.

[1] 2024 ONSC 3905 [Drennan].

[2] Ibid at para 12.

[3] Ibid at para 3.

[4] Ibid at paras 4-6.

[5] Ibid at paras 7-10.

[6] Ibid at para 11.

[7] Mars Canada Inc v Bemco Cash & Carry Inc., 2018 ONCA 239 at para 43 [Mars Canada], citing Hamilton v Open Window Bakery Ltd, 2004 SCC 9 at para 27.

[8] Mars Canada, supra at para 43, citing Young v Young, 1993 CanLII 34 (SCC) at p 134.

[9] Mars Canada, supra at para 43, citing Clarington (Municipality) v Blue Circle Canada Inc, 2009 ONCA 722 at para 30.

[10] Drennan, supra at para 17.

[11] Ibid at para 18.

[12] Ibid at paras 19-20.

[13] Ibid at para 22.

[14] Ibid at para 24.

[15] Ibid at para 13.