Tetlock v. Minister of Finance of British Columbia, [1978] CTC 768

Fulton, J:—This appeal is from a decision of the Honourable Minister of Finance of British Columbia made on July 15, 1977, whereby he affirmed the assessment of succession duties in the amount of $13,118.24 in respect of property passing to the appellant as residual beneficiary of the estate of Helen Salina Tetlock (“the deceased”).

Duty was assessed under col 4 of Sch C of the Succession Duty Act, RSBC 1960, c 372 [since repealed, Bill 12 (BC), section 1, effective January 24, 1977] (“the Act”), applicable to property passing from a deceased to a “stranger”, whereas is is contended that the assessment should have been made under col 2, applicable to property passing from a deceased to (inter alia) a child, with the result that in this case the succession should have been exempt from duty. The sole question involved in the appeal is whether the appellant is in fact a “child” of the deceased by virtue of clause 2(1)(c) [rep & sub 1963, c 44, section 2] of the Act, which provides that

child means

(c) a person to whom during his infancy the deceased stood in loco parentis.

The bare facts are that the appellant was born on October 26, 1932, in Winnipeg, Manitoba. His natural mother died on December 12, 1950, when he was 18; the deceased had been a friend of the family and a close relationship between her and the appellant and his father continued after the death of the mother. In 1955 the appellant’s father and the deceased married. The father died in May, 1971, leaving his estate to the deceased, who in turn died on May 6, 1976, leaving the residue—the bulk—of her estate to the appellant. It is conceded that notwithstanding the current law in this Province as to the age of majority, for the purpose of these proceedings the appellant was in law an infant at the-time of his natural mother’s death, and continued to be such until he reached age 21. I will deal with the details of the actual relationship between the deceased and the appellant during that period after considering what it is that has to be established before a person can be said to have stood in loco parentis to one who is not the natural child of that person.

As I view the authorities, there were initially two tests or criteria which had to be satisfied before that relationship could. be said to exist. The first is that the person alleged to have assumed that relationship has in fact stepped into the shoes of the natural father. The second is that the role or relationship assumed must be with respect to the duty to make provision for—ie, provide financial support for— the child. These are the criteria as they appear in the leading case of Powys v Mansfield (1837), 3 My & Cr 359, 40 ER 964 at 967-8, citing Lord Eldon in Ex p Pye (1811), 18 Ves Jun 140 at 154, 34 ER 271, to which I will refer in more detail later.

As to the first of these tests or criteria, however, I am of the view that it has been modified by later authority to the point where it is no longer necessary to show that the parent‘whose role has been assumed is the natural father—ie, that it is the father who has died or otherwise ceased to perform his duties: see Re Ashton; Ingram v Papillon, [1897] 2 Ch 574 at 577-8, where Sterling J, held:

Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the mother of the child; but it appears to me that the burden of proving such to be the case lies on those who assert the fact so to be.

The concept that it was the father only who had the duty of providing for the support of a child has been further modified by cases and statutes in this country. Thus in Shtitz v CNR, [1927] 1 DLR 951 at 959, [1927] 1 WWR 193 at 201, 21 SLR 345, it is stated:

A person in loco parentis to a child is one who has acted so as to evidence his intention of placing himself towards the child in the situation which is ordinarily occupied by the father for the provision of the child’s pecuniary wants.

(Italics mine.)

And the Equal Guardianship of Infants Act, RSBC 1960, c 130, by section 5, clearly places an equal duty of support on both parents. The same section was contained in RSBC 1948, c 139, and so was in force at the time relevant hereto. It is of some significance with respect to the developing trend in this connection that subsection 16(1) of the Family Relations Act, 1972 (BC), c 20, spells out the matter even more clearly; however, that Act was not in force at the relevant times.

Although at the time in question the persons involved resided in Manitoba, I have no hesitation in referring to the state of the law in British Columbia as the relationship in question is being analyzed in the context of the British Columbia Succession Duty Act. So in my view it is no longer necessary, in order to establish or support this relationship, that the parent in whose locus the person in question stands be the father, and the fact that the natural father was still living at the time in question is no absolute bar to the success of the appellant’s contention.

It is otherwise, however, with respect to the second branch of the test: I can find in none of the authorities any indication that the re- quirement that the role assumed by the person in question must relate to the financial support of the child, has been modified. The appellant must therefore establish that the deceased, in assuming the role of the natural parent—in this case the mother—undertook not only the responsibility of providing love, care and guidance but also the responsibility of providing financial support. As seen, this responsibility devolves equally upon both natural parents, and therefore if and in so far as the deceased did assume the role of the natural mother, she stood in loco parentis if she assumed also the financial responsibility. The evidence, as I shall indicate in a moment, satisfies me that she assumed the role with respect to love, care and guidance: the remaining question is, therefore, did she assume the role with respect to responsibility for financial support?

The evidence in summary is that the deceased had been a friend of the family before the mother’s death. During the mother’s illness in hospital, the deceased and an aunt dropped in frequently to assist in the housekeeping; after the mother’s death this continued until, six months later, the appellant and his father moved into the aunt’s house. There the deceased was a frequent visitor at weekends, and the appellant and his father were frequent visitors to the deceased’s house for meals and other calls during the week. The appellant attained the age of majority in October, 1953.

During this period the attitude of the deceased towards the appellant was one not only of love and affection such as would be displayed by one who stood -in a position of mother, manifesting itself in concern for his physical welfare and well-being, but also in concern for his conduct, habits and attitudes to life and its responsibilities. This included frequent discussions and advice as to the appellant’s manner of dress and appearance, his friends, his work and social habits, his attitude to savings, and the impressing on him of a sense of responsibility: concern for his moral as well as his physical upbringing, and for his career generally. The deceased made him frequent presents of articles of clothing, not so much because he lacked for clothes as because she was concerned about his manner of dress. At one stage she influenced his choice of a career. She was largely instrumental in rehabilitating the appellant’s father, who had developed a: drinking problem. The appellant said that she brought himself, his father, and herself together and in effect “made a family Out of it’. As far as the appellant is concerned, not only was the love and affection she showed him reciprocated, but he responded positively to her guidance and counselling. The evidence indicates that she exerted a powerful and bénéficient influence on him during the formative years of his late youth.

It is a fact, however, that the deceased did not—apart from the incidental provision of meals and gifts referred to—actually contribute to the financial support of the appellant. The need did not arise—his father paid the aunt for room and board, and the appellant, who was working full or part time during most of the period in question, had generally in his own words “enough money to come and go on’’. Can it be said, then, that the deceased actually stood in loco parentis? It is here that the question of intent, and the inference with respect thereto to be drawn from conduct, enters in.

The definition as summarized in Powys v Mansfield, supra, is [at 367 My & Cr 967 ER] “. . . a person ‘meaning to put himself in loco parentis; in the situation of the person described as the lawful father of the child’ ”. And again [at 367-8 My & Cr, 967-8 ER] . . the principal value of . . . [the definition is] the referring to the intention, rather than to the act, of the party”.

Intention is of course a state of mind which, in the absence of direct evidence, as here, can nevertheless be inferred from the conduct of the parties. There is no doubt that the deceased had placed herself in the position, and assumed all the responsibilities, of the natural mother with respect to love and care for, and guidance of, the appellant. The appellant said that he is convinced that, had the need arisen, she would have given him financial support also. From the evidence I heard, which I have summarized above, I consider that such a conclusion is consistent with the attitude and conduct of the deceased. This being the case, I consider further that I have evidence from which I can infer that the deceased intended to assume the full role of the natural mother, including that of provision of financial support should the need arise. (I have already held that the obligation of the natural mother to provide support is coequal with that of the natural father.) Again as stated in Powys v Mansfield [at 368 My & Cr, 968 ER]:

The rule, both as applied to a father and to one in loco parentis, is founded upon the presumed intention. . . . If the assumption of the character be established, the same inference and presumption must follow. The having so acted towards a child as to raise a moral obligation to provide for it affords a strong inference in favour of the fact of the assumption of the character; and the child having a father with whom it resides, and by whom it is maintained, affords some inference against it; but neither are conclusive.

The conduct of the deceased was such that had the need arisen there seems no doubt not only that she would have provided support without question, but that, having thus far fully assumed the role of the mother in every other aspect, she would have had a moral obligation to provide financial assistance had the need arisen. The fact that the need did not arise, in part because the appellant had a father with whom he resided and by whom he was in part maintained affords, again in the words of Powys, “some inference against” the intention, but it is not conclusive.

In considering this matter, I have given careful attention to the case of Re O’Neil and Rideout (1975), 54 DLR (3d) 481, 7 OR (2d) 117, 22 RFL 107, a decision of Dymond, Surr Ct J, cited to me by counsel for the respondent. With respect, however, in my view the first of the tests outlined therein, and stated in that case to be a sine qua non— that the person in question must have in fact provided a large part of the financial support necessary for the child’s maintenance (54 DLR at 491)—is not in fact a sine qua non, for if it were so that would in large part render nugatory the test of intent, which is to be inferred from conduct generally. In my view the other tests set forth are either inapplicable to, or capable of, being resolved in the affirmative in the case before me.

That the paramount consideration is the intention as gathered from the evidence has been expressly approved in cases in this country— as, for instance, in the passage cited from Shtitz v CNR, supra. In summary, in the case before me the deceased had assumed the duties of the mother in regard to the proper upbringing of the child, but had not in fact provided financial support. The fact of having discharged the mother’s role in other aspects is some evidence that she intended to assume the mother’s duty to provide for the child; however, the fact that she was not maintaining the child is some evidence that she did not intend to assume that obligation. Neither fact is conclusive and it must be determined on the weight of the evidence whether the deceased did intend to assume the mother’s duty of Support.

My conclusion is that I should not infer, merely because the need did not arise, that the deceased did not intend to assume the full role of the mother, including that of financial support; but that I should infer from the evidence regarding her attitude and her conduct in assuming and discharging in fact the remainder of the mother’s role, that she had the intention of standing fully in the place of the mother for all purposes.

The appeal is allowed accordingly, with costs to the appellant.