Who Can Make Funeral Decisions for a Common-Law Partner in Ontario?

When your common-law partner dies, you may be the person who knew them best, yet find that their parents or children expect to decide on the funeral, the burial or cremation, and the service. Disagreements are common and they arrive at the worst possible time.

Many people assume a statute neatly ranks who is in charge. For funerals in Ontario, it is not that simple. This article explains what the law says, what the usual practice is, and what you can do to protect your position.

What the funeral legislation does and does not say

The Funeral, Burial and Cremation Services Act, 2002 has a section that would require a funeral operator to get authorization from the person with authority over the remains, as determined in accordance with the regulations. It would also let a person apply to the Superior Court of Justice to determine who has authority. The published text marks that section as not in force.

In plain terms, you should not count on the Act to give you a ranked list that settles the question. If someone tells you that a statute automatically puts you first, or puts a relative ahead of you, ask what the source is.

Who arranges the funeral in practice

Ontario.ca's guidance on arranging a funeral lists who can make arrangements in this order: the estate trustee (named in the will or court-appointed), the spouse, adult children, and then the deceased's parents. The estate trustee is the person often called the executor.

The guidance sets out this order, but the order in table rows two to four is described as the list. The key point for you is the first spot. If your partner named you as estate trustee in a will, you are at the top of the list. If you are not named, your place depends on how the word spouse is treated, and that is the weak point for unmarried partners.

Does spouse include a common-law partner here?

Different laws define spouse differently, and there is no single common-law rule. For support under the Family Law Act, two unmarried people count as spouses if they cohabited continuously for at least three years, or are the parents of a child and were in a relationship of some permanence. Elsewhere, such as health care consent, the threshold is shorter. For succession purposes outside the support provisions, spouse means married persons.

For funerals, it is not confirmed on any official page whether the spouse in the practice list includes a common-law partner. That means a funeral home, family members and sometimes a court could take different views. Where there is a dispute, it may need a lawyer's involvement, and in some cases a court or an estate administrator. A lawyer can confirm how this applies to your facts.

Practical ways to reduce conflict

• Check whether there is a will and who is named as estate trustee; that person leads under the guidance.
• If you are the estate trustee, bring photo ID and proof of your authority to the funeral home.
• If there is no will, ask whether anyone has applied to be court-appointed, since a court-appointed estate trustee is also at the top of the list.
• Look for written wishes: a letter, a prepaid arrangement, or notes your partner left.
• Speak with family early and try to agree on the plan before booking anything.
• Keep a record of your communications in case the disagreement continues.

If you are the estate trustee, you generally control the arrangements, but being kind and open with relatives can save a great deal of pain, even when you do not have to.

What to do next

• Find the will, or confirm that none exists.
• Confirm who is named as estate trustee and whether they are willing to act.
• Ask the funeral home what documents they require before they proceed.
• Write down how long you lived with your partner and whether you had a child together.
• Do not sign anything you do not understand, and do not rush if a dispute is brewing.
• If relatives are contesting your role, speak with a lawyer quickly, since funeral timing leaves little room.

A lawyer can look at the will, your relationship history and the family dynamics, and explain what your options are, including whether a court application makes sense.

Frequently asked questions