British Columbia is truly a playground for the outdoors enthusiast, offering countless outdoor adventures to those who seek them, including fishing off the BC coast or in our innumerable lakes, hiking in the mountains, or venturing into the backcountry to find a yet untouched snowy slope. But these activities come with risks, including that individuals may go missing.

Every year, missing hikers, skiers, and others make headlines, often with tragic outcomes. Sometimes missing persons are found alive or their bodies may be recovered, allowing the Coroner’s Service to declare them dead. In other cases, the person disappears, never to be seen again. When remains are not recovered and there is no clear evidence of death sufficient for the Coroner’s Service to issue a declaration of death, families may need to apply for an order declaring the person to be presumed dead under the Presumption of Death Act (referred to as the “Act” in this blog post) in order to obtain a death certificate.

Why Would Someone Make an Application Under the Presumption of Death Act?

The Act provides a legal remedy to families and interested persons when a person goes missing and is presumed dead, but their remains are never found. Under Section 3, an application can be made to the Supreme Court of BC for an order declaring the individual presumed to be dead. These applications are vital when the missing person never returns home and no remains are found, such that the Coroner’s Service cannot issue a declaration of death.

It may be that the person got lost in the wilderness as described above, that it is likely they committed suicide (Re Martin), or that the individual was involved in possible criminal activity (Re Cyr, though this application was unsuccessful based on the facts), for example. They are missing and presumed dead, but there are no remains which prove that they have passed away.

A successful application made under Section 3 of the Act will result in the court granting an order in which the missing person is legally declared presumed to be dead. This allows families to undertake the actions which normally occur when a person dies, including administering the missing person’s estate, claiming life insurance benefits, and resolving other legal and financial matters of the missing person. Without a death certificate it may otherwise be impossible to move forward with estate administration.

Who Can Apply Under the Act?

Applicants must be “interested persons” as defined in the Act, meaning they:

• are someone who is or would be affected by the order made under the Act;
• are the missing person’s next of kin; and
• hold property of the missing person.

What Must be Proven for the Application to Succeed?

The applicant must prove that:

• (a) the missing person has been absent and has not been heard from by the applicant or anyone else to the knowledge of the applicant;
• (b) the applicant has no reason to believe the person is alive; and
• (c) evidence exists which allows the court to reasonably infer the missing person has died.

What Evidence Is Required?

For the application to succeed, the applicant must prove the above three elements to the court using evidence. This evidence is typically provided by way of detailed personal affidavits which detail the missing person’s last known actions, efforts to locate them, the duration of their absence, a prior history of fraud, the presence or absence of a motive for the missing person to disappear but remain alive, and others (Re Martin). Typically, successful applicants will also provide the court with corroborating evidence, often from police or other authorities, to support the inference of death (Re Cyr).

When Can An Application Be Brought?

At any time so long as you have sufficient evidence to prove the elements above, which varies depending on the circumstances. Often the police are involved and conducting an investigation. You generally would need to wait for the police to have exhausted their search before you are able to proceed successfully and we will include police records as part of our application.

Need Help?

If someone you love has gone missing and you are considering applying for a declaration of a presumption of death, we can help. You can reach out to our intake team at 778.666.3723 or by email to litigationcoldcalls@rdmlawyers.com. We will first need to confirm who the parties are and that we are able to represent you and then will schedule you for a consult with a member of our Estate Litigation Team to talk about what options are available to you.