Court File and Parties

COURT FILE NO.: CV-22-78247 DATE: 2023-09-08 ONTARIO SUPERIOR COURT OF JUSTICE

In the Matter of Nuseiba Hasan of the City of Hamilton, in the Province of Ontario

BETWEEN:

Kareema Johnston Applicant – and – Yamneh Hasan, Sara M. Hasan, Hasan Hasan, Mohammed Musa Hasan, Nasser Hasan, Abdullah Hasan, Mariam Hasan and Hilwa Hasan Khalil Respondents

Counsel: Namratha Sankar, for the Applicant Sara Hasan, Respondent, appearing on her own behalf

HEARD: August 28, 2023

APPLICATION UNDER s. 2(1) of the Declarations of Death Act, 2002, S.O. 2002, c. 14, Sched., R. 14.05(3) (a) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, and ss. 2(1) and 4 of the Absentees Act, R.S.O. 1990, c. A.3

The Honourable Justice SMITH

CORRECTED DECISION: The formatting of the indented quotation at para. 38 has been corrected and paragraphs 39 and 40 renumbered.

Reasons for Judgment

Introduction

[1] The applicant moves for a declaration under the Declarations of Death Act, 2002, S.O. 2002, c. 14 (“DODA”), for a declaration that her birth mother, Nuseiba Hasan (“Nuseiba”), is deceased and, if necessary, for a declaration under the Absentees Act, R.S.O. 1990, c. A.3, that Nuseiba is an absentee. She also asks for an order that she may swear on an application for a Certificate of Appointment of Estate Trustee without a Will that Nuseiba is dead.

[2] The respondent, Sara Hasan (“Sara”), is Nuseiba’s sister and opposes the requests for relief (except for a declaration under the Absentees Act). None of the other respondents participated in this matter. [^1]

Background

[3] Nuseiba was born in Jordan in 1980 but moved with her family to Canada as a child. They lived in Ontario. There is evidence that Nuseiba had a challenging relationship with her family and that from time to time she was estranged from them. In 1998 she became pregnant with the applicant. The father of the applicant was a non-Muslim black man who had immigrated to Canada from Jamaica. Nuseiba and the applicant’s father were not married.

[4] The applicant was born on January 29, 1999, when Nuseiba was 19. She was in Nuseiba’s care until March 1, 2001, when Nuseiba asked that the applicant be placed into foster care. The applicant was placed into interim care, and then extended care. She was adopted by a family in Ottawa. The adoption order is dated March 31, 2003.

[5] There is some evidence before the court that Nuseiba believed that she could not care for the applicant as a single parent without family support, and that her family were not supportive because the applicant had been born out of wedlock and was the daughter of a father who was black and not a Muslim. Nuseiba is reported to have said that there was a chance she could reconcile with her family if she were no longer a single parent. There is also some evidence that Nuseiba was being abused by the applicant’s father.

[6] On February 11, 2015, the Hamilton Police Service was advised by a friend of the family (who was also a police officer) that Nuseiba had not been seen or heard from since 2006 and that there was a concern that a family member had killed her. The police opened a missing persons file that same day which the file was then reassigned to the Major Crime Unit to be investigated as a homicide on March 5, 2015.

[7] According to Det. Sgt. Daryl Read, after extensive investigation the police theory is that Nuseiba died at the Hasan family farm in Flamborough, Ontario, at the hands of one or more of her family members and that her body was disposed of later. The homicide investigation remains open. The evidence collected by the police suggests that the last date upon which Nuseiba was seen or heard from was in late 2006 when she was taken to the family farm by a family member, although an extensive search of the property in October 2016 revealed no evidence of Nuseiba’s remains.

[8] The investigation has revealed that Nuseiba had no support network other than her family, and that she did not have the financial means to disappear and remain hidden since 2006. There has been no recorded contact since 2006 between Nuseiba and any government services. Social Services wrote to her to request information in November 2006 but received no response. No person has said that they have seen her since that time. She has made no banking transaction since 2006. She has not been admitted to a hospital in Canada or received any medical treatment. She did not renew her driver’s licence, which expired in 2007. Her last social media post was in November 2006. The last time she used her Canadian passport was in 2005. It expired in June 2011 and was not renewed. Nuseiba reported her Jordanian passport lost in 2001.

[9] The circumstances of Nuseiba’s disappearance have been the subject of police press releases and significant media attention, both local and national. Yet no-one, let alone Nuseiba, has come forward with information respecting Nuseiba’s whereabouts.

[10] The applicant has had a long interest in connecting with her birth mother. With the assistance of her adoptive mother, she started looking for Nuseiba in 2013 (although she did not know Nuseiba’s name until reading about her disappearance in a Hamilton Spectator article in 2017). She has made enquiries of Nuseiba’s friends and family, none of whom has seen or heard from Nuseiba since 2006. She has searched extensively for Nuseiba (or information about her) on social media. In 2016, the applicant’s adoptive mother hired a private investigator to find Nuseiba. That investigator eventually referred her to the Hamilton Police Service, who were by then conducting their investigation into the matter. In 2018, the applicant contacted an investigative journalist to enquire into Nuseiba’s life and to spread awareness about her disappearance. That journalist released an 8-episode podcast in 2022 but that effort revealed nothing about Nuseiba’s whereabouts.

[11] Sara herself confirmed on cross-examination that she has not seen or heard from Nuseiba since 2005 or 2006.

DODA

[12] DODA provides that an “interested person” may apply, “with notice to any other interested persons of whom the applicant is aware,” for a declaration that an individual has died (s. 2(1), (2) and (3)), which declaration may be made if the court is satisfied that the individual disappeared in “circumstances of peril” or has been absent for at least seven years (s. 2(4) and (5)).

[13] The applicant relies on the latter pre-condition, which itself also requires that the applicant has not heard of or from the individual for seven years, that to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual for seven years, that the applicant has no reason to believe that the individual is alive and that there is sufficient evidence to believe that the individual is dead (ss. 2(5)(a) – (e)).

[14] If the declaration is made based on a seven-year absence, DODA provides that the order of the court “shall state the date of death, which shall be … the date of the application” (s. 2(8)(b)).

Standing

[15] The applicant asserts that she is an “interested person” and has standing to bring this application.

[16] The definition of “interested person” in s. 1 of DODA reads as follows:

1. In this Act,

“interested person” means any person who is or would be affected by an order declaring that an individual is dead, including,

(a) a person named as executor or estate trustee in the individual’s will,

(b) a person who may be entitled to apply to be appointed administrator of the individual’s estate on intestacy,

(c) the individual’s spouse,

(d) the individual’s next of kin,

(e) the individual’s guardian or attorney for personal care or property under the Substitute Decisions Act, 1992,

(f) a person who is in possession of property owned by the individual,

(g) if there is a contract of life insurance or group insurance insuring the individual’s life,

(i) the insurer, and

(ii) any potential claimant under the contract, and

(h) if the individual has been declared an absentee under the Absentees Act, the committee of his or her estate.

[17] None of the listed definitions applies to the applicant. Although she is Nuseiba’s biological daughter, because she was adopted by other parents, she is not Nuseiba’s next of kin. She is, in law, the daughter of her adoptive parents and Nuseiba ceased to be her mother upon that adoption (see s. 217, Child Youth and Family Services Act, 2017, S.O. 2017, c. 14).

[18] However, the applicant makes two arguments in support of the proposition that she has standing. First, she says that the list contained in the definition of “interested person” in s. 1 of DODA is not exhaustive given the use of the word “including” following the broad phrase “any person who is or would be affected by an order declaring that an individual is dead.” The applicant submits that her biological connection to Nuseiba, her obvious emotional interest in Nuseiba’s whereabouts, the significant effort that she has put into finding Nuseiba, her interest in knowing more of Nuseiba’s medical background (which is, in turn, a component of her own medical background) and the circumstances of the decision to place the applicant in foster care, and her desire to memorialize Nuseiba, are factors which separately and collectively establish her as an interested person who would be affected by a declaration that Nuseiba is dead.

[19] Second, the applicant argues in the alternative that she should have standing through the mechanism of the Absentees Act. Pursuant to that legislation, and on the basis of the same factual underpinning, she has concurrently moved for a declaration that Nuseiba is an absentee. There is no doubt of the applicant’s standing under the Absentees Act given that an application under that Act may be brought by anyone (see Absentees Act, s. 2(2)(f)).

[20] If I were to declare Nuseiba an absentee (that is, a person who was ordinarily resident in Ontario but who has disappeared, whose whereabouts are unknown, and as to whom there is no knowledge as to whether she is alive or dead (see Absentees Act, s. 1), it would then be open to consider the applicant’s request to be appointed as a “committee” for the “due care and management of the property” of the absentee (see Absentees Act, ss. 4 – 6). Such a committee is one of the interested persons listed in s. 1 of DODA. The applicant would then have standing to bring the application for a declaration that Nuseiba is deceased.

[21] I am satisfied that the applicant has standing on either of the bases she proposes. In my view, the definition of “interested person” in s. 1 of DODA is not exhaustive. On the contrary, the specified interested persons are representative, but not a complete catalogue, of those people who might be persons “affected by an order declaring that an individual is dead.” In this respect, I note Justice La Forest’s direction that, in a legal document, when used preceding a list of examples, the word “including” is a “term of extension.” That is to say, it is “designed to enlarge the meaning of preceding words, and not to limit them” (National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029, at para. 13).

[22] Notably, DODA does not restrict the ways in which one might be “affected” by a declaration of death. Nor do I read the list of examples of interested persons in s. 1 as revealing a legislative intention to limit the ways in which one might be affected. While some of the examples might suggest that the legislature intended to capture those with a financial “interest,” it seems to me that “the individual’s spouse” or “the individual’s next of kin” may be “affected by” a declaration of death, and have an “interest” in, matters other than those strictly related to matters of property. The spouse of a person who is missing, for example, might want to re-marry and may require, or desire, a declaration of death to be able to do so. To provide another example, as the applicant in this case hopes, a declaration of death might affect the ability of an interested person to be provided access to medical and other records in which “the individual” has a privacy interest. [^2]

[23] I note also in this regard that DODA provides, at s. 2(6), that the court may order that a person be declared dead “only for certain purposes.” Clearly, then, DODA contemplates that a declaration of death may be sought for more than one purpose. Those “purposes” are not limited in any way by the language of DODA. In my view, this is consistent with a reading of DODA which allows that a person’s “interest” need not be solely related to the property of the missing person, and, similarly, that one might be “affected” by a declaration of death in ways other than financial.

[24] As I have said, in this case the applicant – who has for years been searching for her birth mother, or for information about her – is “interested” in whether Nuseiba is alive or dead, whether or not the applicant has a financial interest in that fact, and is “affected by an order declaring that [Nuseiba] is dead” at least because of her interest moving to access Nuseiba’s medical and other records, if not for other reasons. Accordingly, without resorting to the Absentees Act, the applicant is an interested person within the meaning of DODA.

[25] In any case, however, I agree with the applicant that she may become an interested person within the meaning of DODA by operation of the Absentees Act. The applicant has also applied for a declaration under the Absentees Act that Nuseiba is “an absentee.” Pursuant to that Act, an absentee is a person who, “having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead” (Absentees Act, s. 1). The court may declare a person an absentee where “it is shown that due and satisfactory inquiry has been made” (Absentees Act, s. 2(1)). As I have already noted, an application for such a declaration may be made by anyone (Absentees Act, s. 2(2)(f)).

[26] Upon making the order for a declaration that a person is an absentee, the court may also make an order appointing “a committee” for the “custody, due care, and management of the property” of the absentee (Absentees Act, s. 4). Although the legislation provides for the appointment of a trust corporation as the committee (Absentees Act, s. 5), it is not necessary to appoint a trust corporation for that purpose. An individual person may be appointed as a committee (see Poole v. Poole (also known as Lu (Re)), 2008 ONSC 46130, at para 5).

[27] In the circumstances of this case, I am satisfied that Nuseiba is an absentee. The evidence reviewed above shows that she was ordinarily resident in Ontario and that due and satisfactory inquiry has revealed that she has disappeared and that there is no knowledge as to whether she is alive or dead. I note again that Sara does not oppose an order declaring that Nuseiba is an absentee.

[28] I am also satisfied that it is appropriate to appoint the applicant as the committee for the custody, due care and management of the property of Nuseiba. The evidence before me suggests that Nuseiba had little or no property in Ontario but that she may have property in Jordon. As counsel submitted in argument, the issue of whether Nuseiba has property is a matter to be investigated. In my view, the applicant is the appropriate person to take on that role. She has shown by her diligent and persistent search for her birth mother that she will take this obligation seriously and execute it with care.

[29] Sara is opposed to the appointment of the applicant as the committee. Although she has not brought her own application, she proposes in response to this application that she should be the committee.

[30] In my view, no-one other than the applicant who might have assumed the role of committee (for example, any of Nuseiba’s family members, including Sara – all named as respondents in this matter), has shown themselves suitable candidates for the role. None of them ever reported Nuseiba missing (which delayed inquiries into Nuseiba’s whereabouts by almost a decade and thereby hindered the police investigation in the matter). None of them took any steps to preserve or otherwise deal with Nuseiba’s estate. Some, including Sara, resist the idea that Nuseiba is dead despite the compelling evidence that she is both absent and dead. None but Sara participated in this proceeding, despite having notice of it. None of them has applied to be the committee or estate trustee. Only in response to this application has Sara taken any step to be the committee. None prepared a management plan, as the applicant did.

[31] In short, no-one has shown the care and initiative in connection with Nuseiba’s affairs that has been shown by the applicant who, I note, likely has no personal claim to inherit any Canadian property from Nuseiba’s estate, assuming there is any such property, given that she is not, in law, Nuseiba’s daughter. For all these reasons, to say nothing of the police theory that it is a family member (or members) who is (or are) most likely responsible for Nuseiba’s disappearance, I am satisfied that the applicant should be appointed a committee within the meaning of s. 4 of the Absentees Act, and I so order.

[32] As a committee, then, the applicant has standing under DODA to bring her application for an order declaring Nuseiba dead (see DODA, s. 1 (h)).

Should the declaration be made?

[33] As noted above, the court may make a declaration that a person is dead if she has been absent for at least seven years, if the applicant has not heard of or from the individual for seven years, if, to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual for seven years, if that the applicant has no reason to believe that the individual is alive and if there is sufficient evidence to believe that the individual is dead (see DODA, s. 2(4) and (5)).

[34] In this case, the evidence summarized above at paragraphs 3 – 11 demonstrates that neither the applicant nor anyone else has seen or heard from Nuseiba for more than seven years. There has been significant media attention given to Nuseiba’s disappearance and both the applicant and the police have made reasonable inquiries into the whereabouts of Nuseiba, which inquiries lead to the conclusions that there is no reason to believe that Nuseiba is alive, and sufficient reason to believe that she is dead (see Poole v. Poole (also known as Lu (Re)), 2008 ONSC 46130, at paras. 3 – 5; Wasylyk v. Wasylyk, 2012 ONSC 7029, at para. 32; Puffer v. Puffer, 2012 ONSC 3579, at paras. 7 – 12).

[35] While Sara resists the request to declare her sister dead, her appeal to me in that respect was more emotional than evidence-based. During her submissions, she asked rhetorically, and tearfully, “what is the rush” to make this declaration when no body has been found? She said that Nuseiba might be found alive and well any day. While I respect Sara’s understandable desire to hold on to the idea that her sister is alive, the very purpose of DODA is to deal with cases where no body has been found. [^3] Moreover, DODA does not require that the applicant “negate … every possibility but that of death” (Wasylyk v. Wasylyk, 2012 ONSC 7029, at para. 29, quoting from Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, at 398 (9th Cir. 1966)). Further, Sara’s own evidence provides support for the conclusion that the declaration should be made: she has not seen or heard from or of Nuseiba since 2005 or 2006, well more than the seven years required by DODA.

[36] An order will go declaring Nuseiba dead as of the date of the hearing of the application, August 28, 2023.

Nuseiba’s estate

[37] The applicant intends to apply for a Certificate of Appointment of Estate Trustee without a Will so that she may be the estate trustee for Nuseiba’s estate. To facilitate that application, the applicant asks that I order that she may swear on her application for a certificate that Nuseiba died on August 28, 2023.

[38] In making this request, the applicant relies on the following passage from Brian Schnurr, Estate Litigation, 2nd ed. (Carswell), at s.10:3:

Once death is established under subsections 2(4) or 2(5), the court may order that the individual is presumed dead for all purposes. This order may be used in relation to the granting and revoking of Certificates of Appointment of Estate Trustees With or Without a Will (or Letters Probate or Letters of Administration of the property of the deceased person).

Previously in order for the court to have jurisdiction to grant an applicant permission to swear the death of the missing person, it was necessary that the deceased have property in Ontario to be administered. There is no such requirement under the Act.

Once the order declaring the death of the person is obtained, the applicant may swear that the missing person has died. As a matter of practice, it is suggested that the order should specifically authorize the executor of the estate to swear an affidavit as to the death of the deceased person on the application for a Certificate of Appointment of Estate Trustee. Once the court grants the order, an application for a Certificate of Appointment of Estate Trustee is filed in the ordinary manner together with a supplementary affidavit by the applicant confirming the content of the court order. A copy of the order declaring the death should be filed with the application [emphasis added].

[39] For the reasons summarized here, I agree that the order requested by the applicant is appropriate. She is authorized to swear on an application for a Certificate of Appointment of Estate Trustee without a Will that Nuseiba died on August 28, 2023.

Conclusion

[40] For all these reasons, I make the following orders:

a. Nuseiba Hasan (born January 16, 1980) is declared an absentee.

b. The applicant is appointed a committee for the custody, due care and management of the property of Nuseiba Hasan (born January 16, 1980).

c. Nuseiba Hasan (born January 16, 1980) is declared dead as of August 28, 2023, for all purposes.

d. The applicant may swear on an application for a Certificate of Appointment of Estate Trustee Without a Will that Nuseiba Hasan (born January 16, 1980) died on August 28, 2023.

e. There will be no costs payable by any party to this application.

I.R. Smith J

Released: September 8, 2023

[^1]: The respondents are Nuseiba’s siblings and her mother, Yamneh. Sara and Yamneh filed a notice of appearance in this matter, but Yamneh did not appear before me. Nuseiba’s father died in 2011. In an endorsement dated October 7, 2022, MacNeil J. validated service of all other respondents except Abdullah Hasan. With respect to Abdullah, MacNeil J. found that reasonable efforts were made to serve him. She dispensed with service of the application record on him. [^2]: In this respect, I note that an estate may consent to the disclosure of personal health information of a deceased individual (see Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, s. 23(1), para. 4). [^3]: I note also that the legislation expressly recognizes that new evidence might be found which justifies the reconsideration of an order for a declaration. In the happy event that Nuseiba is found alive, or evidence emerges suggesting that she is alive, an interested party may seek leave of the court to move to amend or revoke an order previously made (see DODA, s. 4), although it is obviously important to apply the provisions of DODA with care given that if the property of a person believed to be dead is disposed of or dispersed, it may be difficult to recover that property should that person turn out to be alive (see Wasylyk v. Wasylyk, 2012 ONSC 7029, at paras. 6 – 8).