Court File and Parties

COURT FILE NO.: 2020-126E

DATE: 20200602

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Estate of Marguerite Shannon Timmerman (deceased)

BEFORE: Mr. Justice Graeme Mew

COUNSEL: K. Gordon Gwynne-Timothy – for the applicant, Marilyn Celia Smith

HEARD: 2 June 2020, at Kingston (in writing)

ENDORSEMENT

[1] Marguerite Shannon Timmerman (the “deceased”) died intestate on 16 October 2019 at Kingston General Hospital. She was survived by her two children, Craig Timmerman and Shannon Timmerman. Craig Timmerman subsequently died on 12 November 2019. At the present time, the remains of both Marguerite Timmerman and Craig Timmerman are lodged in the morgue at Kingston General Hospital.

[2] The applicant for appointment as estate trustee without a will is the deceased’s sister, Marilyn Smith, who is a retired bookkeeper. The evidence suggests that the value of the deceased’s estate is nominal, consisting of $1,649.92 held in a bank account. Her only known sources of income were a state pension (Canada Pension Plan) and Old Age Security.

[3] Prior to her death, the deceased had communicated to the applicant that when she died, she wanted to be cremated. After his mother’s death, Craig Timmerman told the applicant that his mother had told him the same thing – that she wanted to be cremated after she died.

[4] A few days after the deceased passed away, the applicant received a telephone call from her niece, and the deceased’s daughter, Shannon Timmerman. The applicant’s affidavit states that during the course of the conversation, Shannon Timmerman became incoherent. She started talking about signs and numbers in a manner that made no sense at all. She suggested that there should be a meeting, attended by her, the applicant and Craig Timmerman. After speaking with Craig Timmerman, the applicant and Craig Timmerman agreed that such a meeting was unlikely to be productive as a result of Shannon Timmerman’s mental state.

[5] Because there was not enough money in the deceased’s bank account to pay for a cremation or burial, the applicant contacted Ontario Works for assistance. She believed that she had made the necessary arrangements through Ontario Works to have the deceased’s remains cremated and interred at the Cataraqui Cemetery. However, these arrangements were not implemented because in the interim, Shannon Timmerman contacted both the Cataraqui Cemetery and Ontario Works to express her opposition to the arrangements that had been made.

[6] An affidavit from Heather Mitchell, an Ontario Works Program Supervisor with the City of Kingston’s Housing and Social Services Department, discloses that sometime after Craig Timmerman’s death, Shannon Timmerman attended their office and met with a case manager. The case manager was “very concerned about Shannon’s state of mind at the interview”. The case manager’s opinion, based on her observations of Shannon Timmerman, was that Ms. Timmerman did not understand what the options were relating to the bodies of her mother and her brother. Ontario Works declined at that time to accept an application for funeral benefits from Shannon Timmerman. Instead, Ms. Timmerman was told that she would need to return to the Housing and Social Services Department office with further information, specifically, particulars of the deceased’s income and assets, before the application could be completed.

[7] Shannon Timmerman has failed or neglected to return to the Housing and Social Services Department office. She left no contact information, having told the case manager that she was homeless.

[8] Catherine MacGillivray, a social worker at Kingston Health Sciences Centre was informed by her social work team leader that there was a dispute between the applicant and Shannon Timmerman over whether the remains of Marguerite Timmerman and Craig Timmerman should be cremated or buried and who would be legally allowed to “claim” the bodies. Her understanding is that Shannon Timmerman had contacted the Cataraqui Cemetery to say that she was the next of kin and that she wanted a burial, but that she had subsequently reported to Ontario Works that she wanted a cremation for both parties. Armed with this information, Ms. McGillivray made numerous attempts over the following weeks and months to make contact with Shannon Timmerman through possible friends or acquaintances. During the course of these exchanges, Ms. McGillivray did receive one telephone call from Shannon Timmerman during which Ms. Timmerman was, according to Ms. McGillivray, incoherent and not able to string a series of sentences together to make a coherent line of thought. Ms. McGillivray felt that she would need to recommend that Shannon Timmerman be assessed for her capacity to provide instructions. That said, Ms. McGillivray did ask Shannon Timmerman if she would consent to having her aunt, the applicant, appointed as the person who could make the decision to dispose of the bodies. Ms. Timmerman did not provide a coherent response, but Ms. McGillivray is satisfied that nothing said by Shannon Timmerman at that time could be taken as agreement to the applicant’s appointment.

[9] On 6 April 2020, Shannon Timmerman left a voicemail message at the hospital which was later forwarded to Ms. McGillivray. She asked the hospital to hold onto the bodies of her mother and brother for a little longer. Her message indicated that she was incarcerated at the Quinte Detention Centre for “45 to 60 days tops” and that she could be contacted there.

[10] Ms. McGillivray states that at this juncture she considered whether it would be reasonable for her to contact Shannon Timmerman again to see if she would be willing to sign renunciation forms and consent forms to allow the applicant to be appointed the estate trustee for her mother and brother. However, because of her ongoing concern and, she believes, similar concerns on the part of the staff at Ontario Works, about Shannon Timmerman’s capacity to make informed decisions, she concluded that it would not be appropriate for her to ask Shannon Timmerman if she is willing to sign a consent or renunciation, as she does not believe that Shannon Timmerman has the ability to comprehend what she would be doing. In Ms. McGillivray’s words, “I would feel ethically compromised in requesting her to sign the consents and renunciations”.

[11] The applicant also believes that Shannon Timmerman is mentally incapable. The bodies of her sister and nephew have been held in the morgue at Kingston General Hospital since their deaths. She wants their bodies to be cremated with the ashes buried in a proper and dignified manner. This cannot be done unless she can demonstrate that she has the authority - as estate trustee - to provide the appropriate instructions. If provided with this authority, the applicant would confirm instructions for the cremation and interment of the remains of her sister and nephew. She shares the belief of Ms. McGillivray and Ms. Mitchell that Shannon Timmerman does not have the capacity to give instructions. If this belief is correct, it is likely that there would be further delay while Ms. Timmerman was located and an assessment of her capacity undertaken.

[12] The applicant has undertaken to advertise in the local newspaper for creditors of the deceased and to properly address whatever claims may be forthcoming.

[13] Rule 74.05 of the Rules of Civil Procedure lists the material which should accompany an application for a certificate of appointment of estate trustee without a will. Such material would ordinarily include a renunciation for every person who is entitled in priority to be named as an estate trustee and who has not joined in the application (Shannon Timmerman would be such a person) and a consent to the applicant’s appointment by persons entitled to share in the distribution of the estate who together have a majority interest in the value of the assets of the estate at the date of death (Shannon Timmerman would likely be such a person). Furthermore, notice of the application must be served on all persons entitled to share in the distribution of the Estate. Such notice does not have to be given to a mentally incapable person, in which case, in the absence of any other attorney under a power of attorney or guardian with authority to act in the preceding, notice would normally have to be given to the Public Guardian and Trustee. There has, however, been no assessment or finding that Shannon Timmerman is mentally incapable within the meaning of section 6 of the Substitute Decisions Act, 1992.

[14] This matter was referred to me by the Estates Registrar at Kingston because the applicant has not served Shannon Timmerman with her application, nor has Shannon Timmerman renounced her entitlement to be appointed as an Estate Trustee or consented to the appointment of the applicant.

[15] Rules 2.01 and 2.03 give the court authority to dispense with strict compliance with the Rules of Civil Procedure, but only where and as necessary in the interest of justice. Furthermore, Rule 1.04(1.1) requires the court, in applying the Rules, to make orders and give directions that are important to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[16] The question for me to decide is whether it is necessary and in the interests of justice to dispense with the requirement for the applicant to give notice of her application to Shannon Timmerman and whether I should accede to the application in the absence of a renunciation from Ms. Timmerman or her consent to the applicant’s appointment.

[17] Notwithstanding that this application is deficient in the ways described, I am nevertheless satisfied that it is in the interests of justice for me to grant the application. I have also granted a similar application with respect to Craig Timmerman.

[18] My reasons, briefly stated, are as follows.

[19] It has been over seven months since the deceased passed away. There will be no assets of the estate to distribute. What little money the deceased had will be applied towards the costs of her disposal.

[20] While there is some evidence that, at some time, Shannon Timmerman may have preferred burial to cremation, I accept the evidence of the applicant that it was the deceased’s wish that her remains be cremated. I see no reason for those wishes not to be respected and implemented.

[21] The delay that has occurred is unconscionable and is due large measure to the difficulties that the applicant, Ontario Works and Kingston General Hospital have had seeking and obtaining coherent instructions from someone with both the capacity and authority to give them. I am satisfied that those efforts have been reasonable and proportionate.

[22] More importantly, Shannon Timmerman has had ample time and opportunity to express her wishes and, if necessary, to take steps to have different arrangements made than those proposed by the applicant. She has been aware for some time of the applicant’s interest in being appointed as estate trustee, and her intended course of action if appointed. Yet Ms. Timmerman has been largely absent and has taken no steps, beyond leaving one voicemail message at Kingston General Hospital, to address how the remains of her mother and brother should be dealt with.

[23] It is also intolerable that Kingston General Hospital should be saddled with the responsibility of preserving and keeping these deceased remains for so long.

[24] It is in no-one’s interests to delay the administration of this estate and, hence, the removal of the bodies and their cremation or burial, because of Shannon Timmerman’s failure or inability to take any steps herself to address the need to attend to these formalities.

[25] I would ask that the applicant and her legal representative make best efforts to bring the certificate of appointment of the applicant to the attention of Shannon Timmerman before the bodies of her mother and brother are finally laid to rest. However, compliance with this request should not unduly delay things further. If, despite reasonable efforts, Ms. Timmerman cannot be found, or her circumstances are such that she cannot immediately participate in any observances associated with the disposal of the deceased’s remains, the applicant should give such instructions as she feels are appropriate.

Mew J.

Date: 2 June 2020