Decision-Making Rights in Disputes Over Burial and Cremation: A Case Study of CR v CM, 2024 ABKB 354

Conor Kopczynski

The death of a child is an unimaginable loss for any parent. Emotions understandably run high, and difficult decisions must be made. When former partners or spouses disagree on these decisions, it can make an already tragic situation even more painful.

One of the most difficult decisions is determining how to honour a child’s remains, whether through burial or cremation. The Alberta Court of King’s Bench addressed this sensitive issue in Cr v CM, 2024 ABKB 354, a case that clarifies the legal framework for decision-making when separated parents cannot come to an agreement.

The Dispute

In this case, the parents of a deceased 15-year-old-boy were unable to agree on the manner of his final disposition. The father, who had primary care of the child under a Court Order, made arrangements for his burial following the funeral. However, the mother sought an emergency injunction to stop the burial, as she wished for her son to be cremated.

The parents had a long history of litigation over parenting matters, including a January 2024 Court Order that gave the father primary care of the child. Despite this order, the child had left his father’s home and had been living with his maternal grandmother, alongside his mother, at the time of his death.

Legal Framework for the Disposition of Human Remains

 Alberta law, through section 36 of the Funeral Services Act, General Regulation, AR 226/98, outlines who has the legal right to make decisions about the disposition of a deceased person’s remains. For minors, the regulation specifies that the parent with legal custody at the time of death holds that right. The Court’s role is not to decide the method of disposition but to determine who has the authority to make that decision.

In this case, although the child had been residing with his mother at the time of his death, the January 2024 Order granted the father primary care, which the Court interpreted as being equivalent to “legal custody” under the regulation. Therefore, the father held the right to decide how to proceed with the child’s remains, even though the child had not been living with him when he passed away.

The Court’s Decision

 The mother claimed that she and the father had an agreement that the child would be cremated, but this agreement was verbal, and the father disputed its enforceability. Ultimately, the Court ruled that the father, as the parent with legal custody, had the right to decide how the child’s remains would be handled, in accordance with section 36 of the Funeral Services Act.

Final Thoughts

 Disputes over the disposition of a child’s remains are understandably fraught with emotion and legal complexity. This case highlights the importance of understanding the legal framework that governs such decisions and underscores the need for clear, written agreements whenever possible. It also serves as a reminder that open communication between separated parents about sensitive matters can help prevent painful disagreements during already difficult times.