Taschuk (Re), 2021 ABQB 414

Court of Queen’s Bench of Alberta Citation: Taschuk (Re), 2021 ABQB 414 Date: 20210526 Docket: ES03 160271 Registry: Edmonton Court File Number ES03 160271 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Daniel Taschuk also known as Danny Taschuk Applicant (Plaintiff) Betty Rosichuk Respondent (Defendant) Donna Gallivan _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] Daniel Taschuk needs a final resting place.

He died on January 25, 2021, and his personal representatives disagree about where he should be buried: in Vilna, where he spent most of his life, living with his parents, or in Edmonton, where he moved after his parents had died, and lived for about ten years. [ 2 ] I find that Mr. Taschuk should be buried in Edmonton.

B. Background [ 3 ] Danny (as both sisters called him, and I will use first names for everyone, intending no disrespect) was born in Vilna, Alberta in 1954. He had compromised health for most of his life, owing to one or more strokes in infancy, which left him with cognitive and mobility challenges. [ 4 ] Danny did his initial schooling in Vilna and completed it at the Michener Centre in Red Deer. At age 21, he moved to St.

Paul, where he lived independently for many years, often returning to Vilna on the weekends to see his parents, who were his guardians. [ 5 ] After Danny’s father died (in 2000), Danny moved back to Vilna, living with his mother, until she died in 2012. [ 6 ] At that point, Donna became his lead guardian.

Unable to find suitable accommodation for him in Vilna, she arranged for Danny to move to Edmonton, where he spent approximately one year living with her and her (now late) husband. [ 7 ] Danny then moved into one Excel Society (community living and supportive services) residence and then another. [ 8 ] He died on January 25, 2021, at age 66. He left a will naming Betty and Donna as his personal representatives.

He never married or had an adult interdependent partner, and he left no children. [ 9 ] As noted, the PRs’ disagreement about where Danny should be buried sparked this application for advice and directions by Betty. [ 10 ] I review more of the key facts in my discussion of the place-of-burial factors below. [ 11 ] I first outline the governing law. C.

Law Estate Administration Act [ 12 ] The Estate Administration Act ( EAA ) invokes regulations under both the Funeral Services Act and the Cemeteries Act to determine who has “authority to control and give instructions for the disposition of human remains ….” (section 6). Funeral Services Act and Cemeteries Act regulations [ 13 ] The General Regulation under the Funeral Services Act states: 36

(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 :

a) the personal representative designated in the will of the deceased;

b) the spouse or adult interdependent partner of the deceased if the spouse or adult interdependent partner was living with the deceased at the time of death;

c) an adult child of the deceased;

d) a parent of the deceased;

e) a guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act ;

f) an adult grandchild of the deceased;

g) an adult brother or sister of the deceased;

h) an adult nephew or niece of the deceased;

i) an adult next of kin of the deceased determined on the basis provided by sections 67 and 68 of the Wills and Succession Act ;

j) the Public Trustee;

k) an adult person having some relationship with the deceased not based on blood ties or affinity;

l) the Minister of Human Services.

(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.

(4) If the person who, under this section, has the right to control the disposition of human remains or cremated remains is not available

or is unwilling to give instructions, that right passes to the next available qualified person. [emphasis added] [14] Mirror-image provisions are contained in ss 11(2), (3) and (4) of the General Regulation under the Cemeteries Act. The latterapply “where the owner of a cemetery … is faced with a dispute among a deceased’s family or others concerning who has the right tocontrol the disposition of the deceased’s remains.” By inference, the Funeral Services Act regulations apply in all other circumstances,including the apparent circumstances here. [15] Betty invokes the regulations under the Funeral Services Act.

Donna invokes those under the Cemeteries Act. Because theregulations are identical, I do not have to decide which statute applies. Duty to arrange disposition of Danny’s remains [16] The key here is that someone has to arrange for Danny’s final resting place, and in a timely way.

As stated by Beck J. inMiner v CPR (1911) (AB CA), 3 Alberta Law Reports 408 at 413 (reversed on a different point (Alta SCAD at 418-422)), quoting from Pettigrew v Pettigrew, (1904), 207 Pa 313: When a man dies, public policy and regard for the public health, as well as the universal sense of propriety, require that his body shall bedecently cared for and disposed of. The duty devolves upon someone and must carry with it the right to perform. [17] In this case, and per both sets of regulations, “the personal representative designated in the will of the deceased” is the front-ranking person to perform this duty.

Resolving conflict between personal representatives over remains disposition [18] The difficulty is that we have two personal representatives, who are unable to agree on Danny’s final resting place. [19] Donna argues that the regulation provides the answer where two equally ranked persons are deadlocked, pointing tosubsection (3) (“order of priority begins with the eldest person in [the applicable] rank ….” [20] However, age-ranking only applies to categories (

c) to (

h) i.e. does not apply to our situation here, under (

a) i.e. with twopersonal representatives. [21] The issue becomes: how does the law resolve a disposition-of-remains dispute between personal representatives? [22] The answer is that the Court will decide, in light of: •

section 6 EAA (reproduced in part above): where personal representatives are in place (as here), it effectively places on theirshoulders the duty to decide on the disposition of human remains; •

section 8 EAA, which states (in part): If, on application, the Court is satisfied that a personal representative has refused or failed to … perform a duty … for which thepersonal representative is responsible, the Court may

a) order the personal representative to … perform the duty or core task;

b) impose conditions on the personal representative;

c) remove the personal representative;

d) revoke a grant;

e) make any other order that the Court considers appropriate. The personal representatives have not refused to do their duty, but their deadlock, persisting now four months after Daniel’s death, iseffectively a failure to perform their duty. The failure is not because either PR has declined to state a position on place of burial orprovide reasons for it. But their deadlock after taking those steps is still a failure to perform their fundamental duty to lay Danny to rest.

Accordingly, in light of that failure, the Court can, and will, make the place-of-burial decision. • alternatively, the Court’s authority to decide comes from s. 37 EAA: If there are 2 or more personal representatives, they must act unanimously unless the will directs otherwise or the Court ordersotherwise.

In this case, the will does not address the disposition of Danny’s remains, leaving “Court orders otherwise” as the sole means of breakinga PR deadlock; and • for completeness’ sake, I note that, even if the personal representatives had agreed on Danny’s final resting place, the Court has anoverriding power (per ss 36(2) – “Subject to an order of the Court …”) to determine the disposition of human remains e.g. if thePRs’ decision was perceived as fundamentally unwise. (Such power does not come into play here. I note that, in Jaworenko Estate (Re),

2013 ABQAB 517, Anderson J. adverted to this overriding power and noted a number of factors beyond a PR’s status as such in giving remains-disposition power to the PR.) [ 23 ] Whichever of these provisions applies, the Court has the authority, and the duty (in light of the PRs’ failure here), to decide where Danny should be buried. Procedural on-ramp for this application [ 24 ] As for the procedural on-ramp to the Court, Betty applied under Surrogate Rule 4:

(1) A personal representative or a person interested in an estate may apply in Form C 1 to the court for directions at any time .

(2) On an application for directions, the court may consider (

a) practice, procedural or other issues or questions and ways to resolve them, and (

b) any other matter that may aid in the resolution or facilitate the resolution of a claim, application or proceeding or otherwise fairly or justly resolve the matter for which direction is sought. [ 25 ] Another on-ramp here would be ss 49(1) and (2) EAA : A personal representative may apply for the advice or direction of the Court on any question respecting the management or administration of an estate . A personal representative who is acting on the advice or direction of the Court given under this

section is deemed, so far as regards the personal representative’s own responsibility, to have discharged the personal representative’s duty as personal representative in respect of the subject-matter of the advice or direction [emphasis added]. Conclusion on Court’s authority to determine Danny’s final resting place [ 26 ] I am satisfied that this Court has jurisdiction under the EAA (and invoked regulations) to decide the place of burial and that this application for advice and directions is appropriate and anchored in the right rule. D.

Analysis [ 27 ] Here are the key factors bearing on where Danny should be buried. Impact of Danny’s will [ 28 ] Danny made a will, but he did not express his resting-place wishes in it. (Not that they would have been binding: see Widdifield on Executors and Trustees , Loose-leaf edition updated up to 2020 (Release 6),

chapter 1 (“Funeral”), at p 1-4: “With the exception of B.C., the directions of the deceased for his burial in his or her will or elsewhere are not binding : Williams v Williams [ (1882), 20 Ch D 659 (Eng Ch Div) ] ….” See also Who has the right to choose the deceased’s final resting place? , Milton W. Zwicker and M.

Jasmine Sweatman, (2003) 22 Estates Trusts and Pensions Journal 43 at 43-45.) Danny’s wishes as expressed before his death [ 29 ] This ends up being a neutral factor, as Danny expressed different wishes at different times, telling Betty at times that he wanted to be buried in Vilna and Donna at other times (even if only implicitly) Edmonton. (Per Donna, Danny understood that Donna’s late husband (who died in April 2020) was buried in Edmonton, that Donna will eventually be buried there, and that he wanted to be buried “by her”, whether meaning in proximity to her eventual grave or in a grave chosen by her.) [ 30 ] Betty did not dispute that Danny may have stated a preference to be buried in Edmonton, but (effectively) submitted that his overriding preference was Vilna. [ 31 ] Donna gave evidence that she never heard Danny express the latter preference but did not directly challenge Betty’s “Danny pro Vilna” evidence. [ 32 ] I accept the evidence of both sisters as to Danny’s stated preferences i.e. he expressed preferences for both locations, as late as April 2020 (“Edmonton”) and November 2020 (“Vilna”) i.e. until shortly before his death in January. [ 33 ] Neither party offered evidence of Danny voicing a negative opinion on either possible resting place e.g. “I do not want to be buried in Vilna” or “I would never want to be buried in Edmonton.”. [ 34 ] My sense of the evidence overall, and in particular the accepted-by-all evidence of Danny’s early-in-life medical trauma and resulting impact on his cognitive abilities, is that his stated views, expressed from time to time, on his final resting place were partly a function of who he was speaking with at the time.

And I do not mean he was suggestible or was led by either sister in these discussions. I find instead that he associated his two sisters with the two chapters of his life (Vilna and Edmonton) and expressed resting-place wishes congruent with those associations in his mind at a given time.

[ 35 ] As noted earlier, a person’s stated resting-place preference, in a will or otherwise, is not binding, though it is entitled to some weight. [ 36 ] The key here is that I am unable to find that Danny had a settled preference . [ 37 ] I do find that he had no strong feelings against either possible resting place. Danny’s quality of life in Vilna and Edmonton [ 38 ] Per Betty, small-town Vilna knew about, and collectively cared for, Danny i.e. as he moved about the town in his various comings and goings.

Donna painted a less-sunny portrait of life for Danny in Vilna. [ 39 ] Vice versa, Betty offered the view that Danny did not like having to relocate to Edmonton (after their parents died – father first, mother in 2012) and never felt at home there or considered it his home. [ 40 ] Donna offered competing evidence here.

She acknowledged that Danny initially found it hard to adjust to life in a new, and much larger, centre, but she provided considerable, and detailed, evidence of the many ways in which Danny became acclimatized to Edmonton and found interesting and enjoyable pursuits here. [ 41 ] I am not in a position to decide, on the evidence provided, who provides the more accurate description of Danny’s life in Vilna.

I will proceed on the basis that, on balance, he enjoyed living there and was fundamentally “Vilna positive.” [ 42 ] I do find that Danny’s transition to city life was not seamless but, eventually, Edmonton became home to him and that he ended his life “Edmonton positive.” [ 43 ] In other words, to the extent Danny’s core affection for his two living locales makes a difference, it is a “wash factor” here.

Parents’ preference [ 44 ] Per Betty (and effectively not challenged by Donna), their parents hoped that Danny would be buried with them, in Vilna, and made arrangements for that, which are still in place today i.e. an available plot in a Vilna cemetery, next to the parents’ plots. [ 45 ] Donna’s position is that those plans were made over forty years ago, before their parents had any idea how Danny’s life would unfold, including (as it played out) his living the final decade or so of his life in Edmonton.

Relative costs of the two place-of-burial options [ 46 ] The Vilna plot is still earmarked for Danny and has already been paid for. Per Betty, Danny can be buried in the Vilna Cemetery “at no expense.” [ 47 ] Donna disputes that, pointing to a “vault charge” of $2,895 in Vilna. As for an Edmonton burial, Donna points to a more-or- less comparable “vault and oversize” charge of $2,775.

She has already paid $3,605 for an Edmonton plot (including “perpetual care” and “opening and closing engraving(s)”). [ 48 ] In support of her Edmonton proposal, Donna has offered to cover the $3,605 out of her own pocket i.e. not charge Danny’s estate for those amounts. [ 49 ] In any case, by Donna’s calculations (which Betty effectively did not challenge, offering no calculations of her own), factoring in all costs (i.e. assuming the estate covered all funeral- and burial-related expenses), the Vilna option ends up being slightly more expensive (by about $800), even with the prepaid plot out there. [ 50 ] I do not see the costs difference as a significant factor here.

Nature of the two cemeteries and family links to each [ 51 ] Saint Demetrius Ukrainian Orthodox Cemetery in Vilna is (per an Internet search) a “Ukrainian Orthodox Cemetery”, with “head stones east facing.” [ 52 ] Betty confirmed that the siblings’ parents are buried in that cemetery and that, per the cemetery administration, Danny can be buried there. [ 53 ] St. Michael’s Cemetery in Edmonton is (per its website) “owned and operated by the Ukrainian Catholic Eparchy of Edmonton. [It] originally opened as a cemetery primarily for Ukrainian Catholics.

Since then [it has] opened [its] grounds to serve all denominations, faiths, and cultures ….” [ 54 ] Donna’s husband, who died in April 2020, is buried there, as are other paternal and maternal relatives. Donna’s intention is to be buried there one day. [ 55 ] Neither sister gave evidence that Danny had any particular religious affiliation, formal or informal. Visiting intentions

[ 56 ] Donna stated that “if Danny is buried at St. Michael’s Cemetery …, I will visit his grave daily when I visit [my late husband’s] grave.” [ 57 ] Wendy Kalynchuk, Danny’s niece (and Donna’s daughter), who supports Donna’s position, stated that “if Uncle Danny is buried at St.

Michael’s Cemetery …, I and my two daughters will visit him regularly.” [ 58 ] Both Donna and Wendy live in Edmonton. [ 59 ] Betty and her daughter Carly Rosichuk, who supported her mother’s application, gave evidence of visiting the graves of the siblings’ parents in Vilna, but did not refer to any particular intentions to visit Danny’s grave (wherever he is buried). [ 60 ] I note that both Betty and Carly live in Smoky Lake, Alberta, which is approximately 40 kilometres from Vilna.

Guardianship dimension and overall connection between Danny and his sisters [ 61 ] Donna was Danny’s co-guardian (with one or both of the parents) since 1991. After the mother died (in 2012), Donna became sole (or lead) guardian. [ 62 ] If I understand the evidence correctly, Betty applied unsuccessfully in or around 2018 to become a co-guardian. [ 63 ] Wendy and her husband were co-guardians or alternate guardians, with Donna, apparently since 2018 or so. [ 64 ] Beyond Donna’s status as lead guardian, the evidence shows a very close connection between Danny and Donna e.g.

Donna visiting him daily at his Excel Society residences (until Covid-19 restrictions prevented such visits) and speaking with him on the phone daily (pre- and during-Covid), taking Danny into her home for a year after the mother’s death, and being in close orbit with him even in his Vilna and St. Paul days (e.g. arranging for week-long summer visits for him to her home in Edmonton). [ 65 ] Betty and Carly offer evidence of Betty’s visits to and calls with Danny. I do not need to determine the precise level of such contact.

And without knowing the full life circumstances of all of the parties, I cannot, and do not, make any judgment call on whether any given person connected with, and cared for, Danny, to the fullest possible extent i.e. in light of all competing life obligations. [ 66 ] But I do find that, on the evidence offered, Danny was closer to Donna, and Donna invested more time and energy into her connection with Danny, than the comparable dimensions for Danny and Betty. [ 67 ] One compelling proxy here is Danny’s response (circa 2013) to his doctor, who (during a medical examination) pointed at Donna and asked “Who is this?”, namely, “she is my new Mama.” In other words, Donna became, after the mother’s death, a mother figure for Danny. [ 68 ] As far as I can tell, Donna indeed performed a mother-like role for Danny, bestowing love, care, and attention for many years, up to his death, going beyond the legal obligations of a guardian.

No competing application by hospital, funeral home or other facility [ 69 ] We are not dealing with a competing application by the hospital, funeral home or other facility, as in University Hospital Lewisham NHS Trust v Hamuth , [2006] EWHC 1609, where Hart J. gave the applicant hospital authority to make burial arrangements where will put forward by the ostensible executor was under challenge (and thus the executor’s authority to give burial directions), and the challenge would not be resolved in a sufficiently timely fashion. E.

Conclusion [ 70 ] Betty’s application was driven by an understandable desire to honour the parents’ wishes that Danny be buried with them. I do not criticize her for standing up for those long-standing wishes. [ 71 ] But, as Donna noted, those wishes were expressed decades ago, when Vilna (and area) were the limits of Danny’s horizons. They could not have foreseen that Danny would have an almost decade-long

chapter in Edmonton, during which his already-close connection with Donna would deepen. [ 72 ] What the parents could foresee was that, as between the two sisters, Donna would have the lead in making decisions for Danny during his lifetime, with Donna’s co-guardianship extending more than twenty years before the mother’s death. The parents obviously trusted Donna’s wisdom and experience in “Danny matters”, and the evidence here shows that their faith in her was justified.

Her care for Danny and involvement in his life over the last decade or so, as sole guardian and his effective “new mother”, is evident. [ 73 ] I also emphasize that, on the evidence here, having Danny’s grave nearby (or relatively nearby) will be more meaningful to Donna (and Wendy) than to Betty (and Carly).

For instance, taking the Donna’s expressed intentions at face value, having Danny buried close by will have daily significance for her. [ 74 ] With the other identified factors not signalling strongly either way, I end up placing considerable weight on Donna’s guardian status, her even-beyond-guardian closeness to Danny and the importance to her of visiting his resting place frequently as the determining factors here. [ 75 ] Danny will be laid to rest in St. Michael’s Cemetery in Edmonton.

[ 76 ] I also see no reason why Donna should have to bear any portion of the funeral- or burial-related costs out of her own pocket. She is entitled to reimbursement from the estate for her self-borne costs to date. [ 77 ] As for costs of the application, I believe both Betty and Donna were sincerely pursuing what they thought was best for Danny and for their family.

In these circumstances, and with the two of them as the 50:50 beneficiaries of Danny’s estate, they are each entitled to reimbursement of their reasonable legal fees and disbursements out of the estate. [ 78 ] I thank the parties for their helpful submissions. Heard on the 21 st day of May, 2021. Dated at the City of Edmonton, Alberta this 26 th day of May, 2021. M. J. Lema J.C.Q.B.A. Appearances: Tracy King The Estate House by Gorman & Koski LLP for the Applicant Randall Osgood Meikle Osgood Barristers & Solicitors for the Respondent