The Re Puffer decision provides an interesting look at the test involved to administer the estate of someone who has gone missing.

In this case, the individual in question, Robert Puffer, went missing on June 26, 2007 (the case was heard in June 2012).  Apparently, on the day he disappeared, Robert told his family that he was going to his cottage alone.  A search of the cottage the next day by a family member determined that a kayak was missing.  Robert’s vehicle was later found in a parking lot on the shore of Lake Huron.  The evidence suggested that the vehicle had been used to transport the kayak to the lake (i.e., the seats were retracted).  Since the day he went missing, there has been no trace of Robert or the kayak.

Robert apparently suffered from mental health issues and had previously attempted suicide.  Of note was evidence that on one occasion he told his physician that if he was to kill himself, he would do it by taking medication and walking into a lake.

The court was asked to declare Robert deceased as of the date of his disappearance or alternatively, declare him an “absentee” so that his property could be legally managed by his brother, John Puffer.  John was apparently named as Robert’s executor and beneficiary under the terms of Robert’s Last Will, executed a year and a half prior to the disappearance.

Under the Declarations of Death Act, 2002 the court has the jurisdiction to declare that a person has died under two circumstances.  The first is when the individual disappeared in “circumstances of peril.” The second is if the individual has been absent for at least 7 years.  In each case, it must be shown that:

(a)Reasonable inquires were made as to the status of the missing individual
(b)The applicant has no reason to believe the individual is alive
(c)  There is evidence to find that the individual is dead

If the above test is not met, the Applicant can declare the missing person an “absentee” and obtain the requisite legal authority to act on behalf of the missing person.

In this case, since Robert was not missing for 7 years, the question was whether he could be deemed to have disappeared in “circumstances of peril.”  The court pointed out that generally a person is at peril as a result of events or circumstances that are external to the individual, such as a natural occurrence or a man-made event.  Alternatively, a person can put him or herself at peril; i.e., by driving into a winter storm.  One may also presume circumstances of peril in certain situations; for instance, if someone is spotted standing on the ledge of a bridge and then not seen a moment later.

Here, there was no suicide note, no clear evidence of an intention to commit suicide nor could the inference be drawn based on the circumstances that Robert had actually died.  The question as stated by the court was whether “past actions and evidence of an inclination to suicide, in company with the parked car at the dock and the absence of a kayak, are enough to find that Robert was in circumstances of peril when he disappeared.”

The court declined to find that Robert disappeared in circumstances of peril.  Instead, Robert was declared an abstentee and his brother was permitted to act as committee of his property.

It is interesting to note that the legislation requires the presence of circumstances of peril at the time of disappearance, without considering what peril may have developed over the transpiring period of absence.  While a ride in a kayak on a presumably calm summer day does not necessarily entail peril, certainly five years of being missing in Northern Ontario would imply a great deal of peril.