When it comes to dividing up property during a divorce, Ontario Family judges are often asked to deal with some rather unique assets. As we reported recently for example, a Toronto couple were in dispute over some Taylor Swift concert tickets they had purchased during happier times.
One uncommon asset that you don’t often hear about, is burial plots in a cemetery. The issue is whether they are considered “family property” – a question that takes on heightened significance due to their very personal nature and often significant financial value.
The good news is that burial plots are treated very much like any other asset, with the courts being mindful of all the various factors that must be considered when dividing property under the Ontario Family Law Act.
Under that legislation, family property is defined to include assets that are acquired by spouses during their marriage, and used for family purposes. Typical assets include the matrimonial home, vehicles, furnishings, and investments. The legislation also carves out certain exceptions for items such as inheritances and certain traceable items.
Burial plots are in somewhat of a gray area. How a court views them will depend on the circumstances of their purchase by the spouses.
For example, if one spouse was gifted a family burial plot by his or her parents before the marriage, it will likely be considered exempt as family property, and its value will not be subject to equal division under the Family Law Act regime.
On the other hand, if the couple purchased side-by-side plots during their marriage as a joint investment (and especially with shared funds), they will likely be declared to be shared family property that is subject to division in the normal way.
Sometimes the court must arrive at a hybrid determination, or try to let the spouses work it out themselves. One illustration is the decision in Sea v. He, where the couple had purchased two pricey burial plots while married – which neither of them now wanted to keep.
The court tried for a just outcome, giving the former couple a chance to first work things out between themselves. It ruled as follows:
[206] I turn next to the burial plots.
[207] In 2017, the parties purchased two burial plots for $75,037. As of trial, the fair market value for similar sites is $110,800. The parties can also cancel the contract and obtain a refund of approximately $58,698.
[208] Like the artwork, neither party wants to keep these burial plots. Rather, each wants the value of the plots to be allocated to the other party on the property division and to receive compensation accordingly.
[209] I order that, unless within 45 days of the date of these Reasons, the parties have agreed on disposition of the burial plots, the burial plots be sold, with the parties having joint conduct of sale, and the net proceeds be divided equally between Mr. Sea and Ms. He.
At the end of the day, burial plots may not be typical assets in a marriage and subsequent divorce, but they are usually treated like they are. Dividing them up may be a grave matter, but the Ontario courts are willing to dig into the matter!
For the full text of the decision, see:
Sea v. He, 2022 BCSC 2169 (CanLII), <https://canlii.ca/t/jtgxj