British Columbia

B.C. man retrieves mother's ashes after 17-month battle with her executor

John Malcolm has been waiting to bury his mother, Phyllis Malcolm, ever since she passed away in January 2020.

The Law Society of B.C. has appointed a custodian to take over the lawyer's files

John Malcolm says retrieving his mother's ashes has finally brought him a sense of closure. (CBC News/Enzo Zanatta)

John Malcolm has been waiting to bury his mother, Phyllis Malcolm, ever since she passed away in January 2020.

Now, after a 17-month battle with his mother's executor, Malcolm finally has his mother's ashes in hand.

"It's bittersweet. I'm glad it's come to this stage that it's almost over. But I've got mixed emotions," said Malcolm, fighting back tears, moments after retrieving his mother's ashes from the Law Society of B.C.

"Why did this happen? Why couldn't this have been dealt with sooner?"

For more than a year, Malcolm said his mother's executor, Victoria-based lawyer R.C. 'Tino' Di Bella, refused to hand over the ashes and instead cut off all communication.

The Law Society of B.C. has since suspended Di Bella's license and, in April, it applied to the courts for the appointment of a custodian to take over Di Bella's files.

"Because Mr. Di Bella was in a position where he was unable to fulfil his responsibilities, the Law Society did step in and get an order from the courts to be able to take the steps necessary to protect the family and the public's interest," said Jason Kuzminski, director of communications with the society.

Di Bella originally blamed the hold-up on the pandemic.

Buried with her husband

In her will, Phyllis Malcolm wrote that she wished to have her remains buried on Salt Spring Island alongside those of her late husband of 68 years.

Phyllis and John Moore Malcolm on their wedding day in 1941. Their son, John Malcolm, says they were inseparable. (John Malcolm)

Since her death, Malcolm has felt immense guilt that he hasn't been able to fulfill her wish. 

"It's been too long. The celebration of life will come later when the borders are open and things are better. But she's got to get in the ground with my dad. That's the number one priority."

Malcolm learned that he would be able to retrieve his mother's ashes back in May, but provincial travel restrictions due to the pandemic kept him from making the trip. 

It felt like a cruel joke, he said.

Di Bella's office closed permanently

When CBC News first spoke with Malcolm back in March, it had been more than a year since he had received a reply from Di Bella, despite repeated calls, e-mails and texts.

Eventually, he contacted the Law Society of B.C., which completed an investigation.

"Mr. Di Bella failed to respond to our inquiries, resulting in the Law Society issuing a citation that has not yet been scheduled for a hearing by the tribunal," it previously wrote in a statement. A citation is a public document issued by the society that includes allegations against a lawyer.

Phyllis Malcolm pictured holding her youngest grandchild. (John Malcolm)

Kuzminski confirmed that a hearing date still has not been set and the allegations in the citation have yet to be proven. 

Di Bella had been reviewed by the society multiple times in the past after numerous complaints about lack of timely communication, among other things.

CBC News contacted Di Bella at his work address, but an automatic reply said Di Bella Front Street Lawyers is now permanently closed and, as of May 13, all files have been transferred to the Law Society of B.C. 

The entire process has hit Malcolm hard. There are still many unanswered questions about why Di Bella refused to hand over the ashes and cut off communication.

Malcolm spent months fighting for his mother and, finally, they've been reunited.

"Closure. I'm finally feeling her death now. I've not felt it for almost two years. But now, it's real," said Malcolm
 

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