The Legalities of a Missing Persons Case

Late last month, news was buzzing around the possibility of Michael Dunahee finally being discovered after his disappearance over two decades previous. The test results have most likely come back negative, and there have been no further mentions of Michael in recent news. The search for Michael Dunahee must continue.

Cases that involve missing persons are delicate matters of the law. On the one hand, a missing person is no longer present to represent themselves or the interests of their estate, while on the other hand there is no physical evidence of their passing.

Statistics of Missing Persons In Canada

The last reported statistics in Canada for missing persons were for 2011. In that year, 19,086 missing adult cases were reported. Of these cases, 85% were removed within a week, but an unlucky few are never solved. In these cases the family must contend with the realities of handling property that belongs to the missing person. It can be painful to some, and cathartic to others. Whatever the case, a missing person’s legal rights must be handled with sensitivity and flexibility.

When Presumption of Death Is Appropriate

There is an often quoted myth that a person must be missing for 7 years before they can be declared as a person presumed dead in the eyes of the law. This is never actually stated by the law. The actual wording for the law regarding a presumption of death in a missing persons case is thus:

3  (1) If, on the application of an interested person under the Supreme Court Civil Rules, the court is satisfied that

(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,

(b) the applicant has no reason to believe that the person is living, and

(c) reasonable grounds exist for supposing that the person is dead,

the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.

(2) An order made under subsection (1) must state the date on which the person is presumed to have died.

(3) Any interested person may, with leave of the court, apply to the court for an order to vary, amend, confirm or revoke an order made under subsection (1).

(4) An order, or a certified copy of an order, declaring that a person is presumed to be dead for all purposes or for the purposes specified in the order, is proof of death in all matters requiring proof of death for those purposes.

 (5) The registrar of the court must forward to the chief executive officer under the Vital Statistics Act an order made under subsection (1) or (3) within 30 days of the entry of the order.

 

When a family member goes missing without any evidence of their death, the hope will always remain for that person’s well-being. In the meantime, their family may need to handle serious matters of the person’s estate.

When a family member passes away, the issue of a death certificate allows the family to conduct the appropriate transitions under the law in an efficient manner. Under the Survivorship and Presumption of Death Act, (RSBC 1996, c 444) – the family can apply for the presumption of death in specified cases.

This allows someone to change the legal status of their spouse in order sell their home, while leaving untouched the status of the marriage itself. This is a beautiful portion of the law, showing the flexibility and compassion for families of missing persons who will never give up hope, while allowing them some closure in a logistical sense.

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