) ) kathleen buswa, margaret buswa v. maryann, 2010 ONSC 7137

CITATION : Buswa v. Canzoneri, 2010 ONSC 7137 COURT FILE NO.: 05-93/10 DATE: 20101222 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) kathleen buswa, margaret buswa and maryann buswa Applicants – and – ANGEL CANZONERI Respondent ) ) ) ) ) ) ) ) )) Katherine Hensel , for the Applicants Angel Canzoneri, in person ) ) HEARD: December 15, 2010 Stinson J. [ 1 ] This is a motion for the appointment of an Estate Trustee During Litigation. [ 2 ] By any measure, this is a very sad and painful dispute, arising from tragic circumstances.

On August 29, 2010, Leo Buswa, age 42, was found badly beaten and unconscious in his Toronto apartment. He never regained consciousness. He remained in a coma in hospital until he died from his injuries on September 29, 2010. [ 3 ] Mr. Buswa died without a will. This is understandable, given his premature and unexpected death. As a consequence, however, he did not appoint an executor or other personal representative to look after his affairs following his death. In particular, he left no one with legal authority or responsibility to arrange his funeral and dispose of his remains. [ 4 ] Mr.

Buswa had a number of relatives who loved and cared for him. Unhappily, they disagree over what traditions and observances should be followed in the wake of his death, and how his body should be treated. [ 5 ] Mr. Buswa did not have a spouse. He was survived by seven siblings, including the applicants, his sisters, Kathleen, Margaret and Maryann. The respondent Angel Canzoneri asserts that she is his daughter, although the applicants do not acknowledge that Mr. Buswa was her natural father. The motion before me concerns competing claims by each side to be given authority over Mr.

Buswa's remains. [ 6 ] Both sides agree that the proper course of action is for me to appoint one side or the other as the Estate Trustee During Litigation ("ETDL") of Mr. Buswa's estate. Both sides also agree that, in light of the time that has already passed since Mr. Buswa's death, they are anxious to have this dispute resolved promptly, and finally, now.

They therefore further agree that the ETDL appointed by me should assume authority over his remains and conduct his funeral as they deem appropriate. [ 7 ] The duties and authority of the personal representative of a deceased person include the responsibility for disposing of his or her remains. The personal representative has the discretion as to how the remains of the deceased should be treated and disposed of and what observances should be followed. The fundamental obligation is that the body is to be dealt with appropriately, that is, disposed of in a dignified fashion.

Even in circumstances where religious beliefs prohibit cremation, such religious law has no bearing on a hearing of this nature: see Abeziz v. Harris Estate, [1992] O.J. No. 1271 (Gen. Div.) ; Saleh v. Reichert, [1993] O.J. No. 1394 (Gen. Div.) ; Lajhner v. Banoub , [2009] O.J. No. 1327 (S.C.J.) . [ 8 ] The first issue I must decide is whether, on the evidence before me, I am satisfied that the respondent Angel Canzoneri is the natural daughter of Mr. Buswa. Ms. Canzoneri was born in 1990. Her parents never married, and Mr. Buswa's name was not included on her birth registration.

She did not meet him until 2008. [ 9 ] According to the applicants, at one point Mr. Buswa expressed doubts regarding his paternity of Ms. Canzoneri. To date, no DNA test has been performed to confirm or disprove the parent-child relationship. Both sides agree that a suitable sample of Mr. Buswa's

DNA should be preserved, regardless of the outcome of this motion, so that DNA testing can be performed later, if necessary. [ 10 ] Ms. Canzoneri has presented several items of proof to support her position that Mr. Buswa was her father. Two of these are documents containing Mr. Buswa's signature. One is a statutory declaration signed by him in 2008, declaring himself to be Ms. Canzoneri's father. The second is a 2010 application to amend her birth registration to include his name as her father. The applicants concede the authenticity of Mr. Buswa's signature on these documents. [ 11 ] In her affidavit, Ms.

Canzoneri described various events that reflect a father-daughter relationship with Mr. Buswa. Ms. Canzoneri also filed a number of Facebook messages exchanged between them, including a “happy birthday” one from father to daughter, that further support her position. All of this evidence is uncontradicted. [ 12 ] On the basis of the evidence before me, I am satisfied on a balance of probabilities that Ms. Canzoneri is the natural daughter of Mr. Buswa. [ 13 ] Mr. Buswa had a second child, by another woman, a son named Brandon Lee Anderson, age 15. He lives with his mother in British Columbia.

His mother has informed counsel for the applicants that she and Brandon support the applicants' position in this dispute. Brandon is not a party to the proceedings before me. My duty is to decide whether the applicants or the respondent should be appointed as ETDL. [ 14 ] Ms. Canzoneri has filed a formal application (not yet processed) with the Estates Office for a Certificate of Appointment of Estate Trustee Without a Will. In that application she acknowledges the existence of her half brother and his entitlement to share in their father's estate. While Mr. Buswa remained in a coma in hospital, Ms.

Canzoneri took care of arranging for payment of his health care expenses by the British Columbia Health Insurance Program. This was necessary because Mr. Buswa did not have health insurance in Ontario. In my view, these actions by Ms. Canzoneri reflect a sense of responsibility and maturity on her part well beyond her chronological age. In making that observation, I in no way diminish or deprecate the concerns or efforts of the applicants and Mr. Buswa's other relatives in relation to caring for him before and after his untimely death.

Indeed, I am satisfied that all parties to this proceeding have acted and continued to act in good faith, based on their sincere view that they are acting in accordance with Mr. Buswa's beliefs and desires. [ 15 ] At the heart of the disagreement between the applicants and the respondent is the question of whether Mr. Buswa's funeral and burial should be carried out in accordance with traditional Anishnabek practices. Mr. Buswa was born in Blind River, Ontario and was a member of the Whitefish River First Nation. The applicants are also members of the Whitefish River First Nation.

According to Anishnabek beliefs, surviving family members have obligations to their relations, living and deceased. While persons who have passed away travel to rejoin their relations, a portion of their soul remains with their body forever. One of the most important obligations of an Anishnabek person to their deceased relations is to care for their bodies after they have passed away, to ensure that they are buried near their relations and within their ancestral territory, and to conduct appropriate ceremonies and other forms of care for the deceased at their grave sites.

They must ensure that the remains of the deceased are not further disturbed, destroyed or desecrated. A further Anishnabek teaching is that cremation not only harms the deceased person, but prevents the necessary care being shown to that person by their living relations. [ 16 ] The applicants and Ms. Canzoneri disagree whether, at the time of his death, Mr. Buswa remained an adherent to the Anishnabek belief system: the applicants assert he did while Ms. Canzoneri says he did not. While some of Mr. Buswa's other siblings support the applicants, one of his sisters support the position of Ms. Canzoneri. Ms.

Canzoneri's view is that Mr. Buswa did not want a traditional Anishnabek funeral and burial, but instead wanted to be cremated. [ 17 ] Plainly, these two courses of actions are incompatible and irreconcilable. In the face of this dispute, the decision must be made by the person who is appointed as Mr. Buswa's personal representative. Their obligation, as I have noted, is to ensure that the body is disposed of in a dignified fashion.

Both Anishnabek practices and cremation meet this test. [ 18 ] The authority of the Superior Court of Justice to appoint a personal representative for someone who has died intestate or without an executor is found in s. 29(1) of the Estates Act , R.S.O. c. E.21. That

section reads as follows: 29.

(1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to, (

a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death; (

b) the next of kin of the deceased; or (

c) the person mentioned in clause (

a) and the next of kin, as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit. Because Mr. Buswa had no spouse immediately before his death, ss. 29(1)(

a) and (

c) have no application. Rather, the court's appointment power comes under s. 29(1)(b). That provision empowers the court to appoint the next of kin as the personal representative of the deceased. [ 19 ] The term "next of kin" is not a defined term in the Estates Act . In Black's Law Dictionary, "next of kin" is defined as follows: In the law of descent and distribution, this term denotes the person's nearest of kindred to be decedent, that is, those who are most nearly related by blood. ( Black's Law Dictionary, sub verbo "next of kin".)

[ 20 ] The concept of "degree of kindred" is discussed in Brown and Myers, Administration of Wills, Estates and Trusts , 4 th ed. (New York: Delman Publishers Inc., 2009) at 88, as follows: The relationship between a deceased person and her relatives to determine who are most nearly related by blood. For example, parents and children of a decedent are related to the decedent in the first degree. Grandparents, grandchildren, brothers and sisters are related to the decedent in the second degree. [ 21 ] Applying these concepts to s. 29(1)(

b) of the Estates Act , leads to the conclusion that the administration of a person who dies intestate is to be granted to the person who is most closely related to the deceased. This

interpretation is reinforced by the reference in s. 29(1) to situations in which the court receives applications from multiple persons "who are equal in degree of kindred to the deceased." The inclusion of that provision confirms that, where there are multiple applicants, the legislature intended that ordinarily the relative who is closer in degree of kindred is entitled to priority. [ 22 ] In the present case, the applicants are siblings of Mr. Buswa, while Ms. Canzoneri is his daughter. This means that the applicants are related to the deceased by blood in the second degree. By contrast, as Mr.

Buswa's daughter, Ms. Canzoneri is related to him by blood in the first degree. As a consequence, Ms. Canzoneri is more closely related to Mr. Buswa than his siblings. This means that she qualifies as his "next of kin" for purposes of s. 29(1)(

b) of the Estates Act . [ 23 ] The result of the foregoing analysis is that, as between Mr. Buswa's sisters and his daughter, his daughter is entitled to priority for purposes of court appointment as administrator of his estate under s. 29(1) of the Estates Act . The parties have agreed that, for present purposes, the successful person on this motion should be appointed as the ETDL for Mr. Buswa's estate, for the limited purpose of dealing with his remains. I therefore appoint Ms. Canzoneri as ETDL, with her authority limited to that function.

She is not required to post a bond. [ 24 ] As ETDL for the estate of the late Leo Buswa, Ms. Canzoneri is authorized and empowered to contact and deal with the Office of the Chief Coroner, who, in turn, is directed to follow her instructions as the duly appointed personal representative of the deceased, in relation to his remains. She is further authorized and empowered as personal representative of the deceased to dispose of his remains in a dignified manner. [ 25 ] I fully recognized that the outcome of this proceeding will be a disappointment for Mr.

Buswa's siblings who subscribe to Anishnabek beliefs and practices. My decision is in no way related to or based on the beliefs of the applicants or those of the respondent. Rather, it is based on my legal

interpretation of the Estates Act , as described above, and the entitlement of the closest relative of the deceased person to appointment as personal representative in ordinary circumstances. [ 26 ] An order will therefore issue appointing Ms. Canzoneri as ETDL of the estate of Leo Buswa, without the requirement for her to post a bond. The motion of the applicants is dismissed. This is not an appropriate case for any order as to costs. ___________________________ Stinson J. Released: December 22, 2010 CITATION : Buswa v. Canzoneri, 2010 ONSC 7137 COURT FILE NO.: 05-93/10 DATE: 20101222 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

kathleen buswa, margaret buswa and maryann buswa Applicants – and – ANGEL CANZONERI Respondent REASONS FOR DECISION Stinson J. Released: December 22, 2010