Missing Persons Part 1 - The Absentees Act.
We sometimes hear reports in the news of people going missing. In such circumstances, what happens to their property? One option is for someone to apply to be a committee so that they may have the authority manage the missing person’s property in their absence.
Pursuant to section 1 of the Absentees Act, R.S.O. 1990, c. A.3, an absentee is a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts are unknown and as to whom there is no knowledge as to whether he or she is alive or dead.
An application may be made by pretty much anyone pursuant to section 2(2):
a) the Attorney General;
b) any one or more of the next of kin of the alleged absentee;
c) the person to whom the alleged absentee is married;
d) the person with whom the alleged absentee was living in a conjugal relationship outside marriage immediately before the absentee’s disappearance;
e) a creditor; or
f) any other person.
Pursuant to section 2(1), the Ontario Superior Court of Justice may declare a person to be an absentee if it is shown that “due and satisfactory inquiry” has been made into their disappearance.
In the case of Kamboj v. Kamboj, 207 CanLII 14932 (ON S.C.) Justice Quinn provides an informative and instructive discussion of what is required to find a person an absentee under the Act. Here are some of the factors to be considered with respect to whether satisfactory inquiry has been made:
a) Are the applicants the only close relatives of the alleged absentee?
b) Does the alleged absentee have other relatives or friends in Ontario or elsewhere and, if so, do they have relevant information?
c) Have inquiries been made at establishments that the alleged absentee frequented?
d) Have inquiries been made at any clubs, religious, community or social organizations to which the alleged absentee belonged?
e) Have inquiries been made with the alleged absentee’s family doctor?
f) Has a notice been published in a local newspaper, containing the alleged absentee’s picture and soliciting information in respect of their whereabouts? Did the disappearance attract media attention?
g) Did the alleged absentee have a will?
h) Did the alleged absentee have any creditors? If so, do they have relevant information?
If satisfactory inquiry has been made and the missing person is declared to be an absentee, a committee will be appointed. The committee will have to submit a management plan setting out how they propose to manage the absentee’s property.
If the Court is later satisfied that the person has ceased to be an absentee, it may make a declaration to that effect and set aside the order declaring the person an absentee for all purposes, except for things done in respect of the absentee’s estate while such order was in force.
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