Court File and Parties

COURT FILE NO.: 2019-3

DATE: 20200416

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE ESTATE OF RICKIE WALSH, deceased.

BETWEEN:

SHARON WALSH, Applicant

AND:

RACHEL CHURCHILL, Respondent (Objector)

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: B.C. Balmer, for the Applicant R. Churchill, self-represented

HEARD: April 16, 2020 (in chambers)

ENDORSEMENT: COVID-19 PROTOCOL

[1] As a result of COVID-19, regular Superior Court of Justice operations are suspended at this time as set out in the March 15, 2020 Notice to the Profession, the Public and the Media by the Chief Justice of Ontario[^1] (the "Notice").

[2] In accordance with the Notice, electronic materials were filed by the applicant through the Courthouse email address.

[3] The matter was referred to me as Triage Judge for a determination of urgency and for direction as to how this matter is to proceed.

[4] I have reviewed the applicant's draft Notice of Motion and the affidavit of Brent Balmer, sworn April 15, 2020 with attached exhibits. That material was served on the respondent, who filed a brief unsworn response by email.

[5] The applicant seeks leave, on an urgent basis, to secure an interim order prohibiting Service Corporation International ULC ("SCI") from releasing the remains of Rickie Joseph Walsh until further order of the court.

[6] At present, despite the fact that the Superior Court's technological resources are thinly stretched in this unprecedented situation, arrangements may be made to conduct urgent business. Courthouses are closed. Staff are working from home. The health and well-being of the litigants, counsel, the public, the court staff and judges prevents "business as usual". Nevertheless, the court is committed to deal with matters that are truly urgent.

[7] The Notice lists certain matters that may be deemed urgent. The issue raised in this motion is not one of those. The Notice contemplates that other matters may be deemed urgent, but directs that such matters should be strictly limited.

[8] The issue before me is whether the proposed motion is urgent.

[9] Mr. Walsh died on February 24, 2019, almost 14 months ago. He was cremated. Since that time, his ashes have been held by the Giffen-Mack Funeral Home & Cremation Centre, which is owned by SCI.

[10] The issues in dispute are the validity of a purported will of Mr. Walsh, and as to who should be appointed estate trustee. Each of the parties claims to be an appropriate trustee. The distribution of the estate and possession of the ashes of Mr. Walsh will follow the resolution of the dispute.

[11] Correspondence from counsel for SCI to counsel for the applicant indicates that within the past month, the respondent and her husband threatened the funeral home with legal action if it failed to turn over Mr. Walsh's remains to her. Counsel expressed a desire not to be drawn into the dispute.

[12] In the affidavit of Mr. Balmer, he asserts that SCI would prefer not to keep the ashes. He does not say that the funeral home is unwilling to do so, and apparently it will consent to an order that it hold the ashes pending further order of the court.

[13] I express no opinion on the potential success of the applicant in the application or as to the respondent's objection.

[14] It is my decision that to the extent of the request for interim relief, this matter is not urgent and therefore it will not be heard in advance of the court's return to regular operations which, as of now, is anticipated to be in early June 2020.

[15] It is not clear why the respondent has refused to consent to the order requested. If she is prepared to reconsider and consent, the parties will be able to re-focus on the real issues in the estate dispute. The conduct of either party at this stage of the litigation may well influence a court later as to the reasonableness of their positions. In any event, in my view, it would be inappropriate for either party to demand possession of the ashes while the dispute is unresolved, and without the support of a court order.

Reid J.

Date: April 16, 2020

[^1]: See the Notice dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.