Minister of Finance of British Columbia v. Estate of Andrew Lawrence Carper, [1970] CTC 257

TAGGART, J.A.:—On September 18, 1967 the appellant, acting under the provisions of the Succession Duty Act, R.S.B.C. 1960,

e. 372, and amendments thereto, assessed a bequest to Norman Carper (Norman), the legitimate natural son of the deceased, Andrew Lawrence Carper, by application of the rates set out in the fourth column of Schedule C to the Succession Duty Act. The respondent appealed the assessment to the Minister of Finance contending that the bequest by the deceased to Norman should have been assessed. by reference to the second column of Schedule C since it was contended Norman was the child of the deceased. The Minister of Finance affirmed the assessment and thereupon the respondent appealed to the Supreme Court of British Columbia. The learned Judge below allowed the appeal and from his judgment the present appeal is taken.

Norman, who was born in November 1933 to the deceased and his then wife, lived in the Carper household for the first three years after his birth. The deceased and Mrs. Carper separated when Norman was about three years old and Norman thereafter was in the custody of his mother. Some time later a decree of divorce terminated the marriage of the deceased to Mrs. Carper and in July 1937 Mrs. Carper married Norman Neville.

On September 19, 1949 Norman was adopted by his mother, then Mrs. Neville, and by Norman Neville, the adoption being effected pursuant to the provisions of the Adoption Act of Manitoba.

On September 8, 1965 the deceased died domiciled and resident in British Columbia and by his will made a substantial bequest to Norman. The will of the deceased was proved in the Vancouver Registry of the Supreme Court and all the assets of the estate were situated in British Columbia.

In assessing the bequest to Norman, the appellant applied the fourth column of Schedule C to the Succession Duty Act because he contended that by virtue of the provisions of the Adoption Act, R.S.B.C. 1960, c. 4 (first enacted by 1957 (S.B.C.), e. 1), Norman had ceased to be the child of the deceased. That decision wjas? affirmed by the Minister of Finance but the learned Judge below gave such retrospective effect to subsections (1) and (2) of Section 10 of the Adoption Act of British Columbia as to hold that Norman must be deemed in law for all purposes to have been from birth the child of the Nevilles as if he had been born to them in lawful wedlock and never to have been a child of the deceased. He further held that since it was uncontested that Norman had lived with the deceased for a period of three years after the date of his birth; Norman must have been a person to whom during that period of his infancy the deceased stood in loco parentis and was therefore a child within the meaning given to that word by Section 2(1) of the Succession Duty Act. No issue was taken with respect to whether the period of three years was sufficient to establish the relationship of locus parentis.

It will be convenient to set out here the relevant provisions of Section 2(1) of the Succession Duty Act and Sections 10 and 11 of the Adoption Act of British Columbia.

Succession Duty Act

2. (1) In this Act, unless the context otherwise requires, “child” means

(a) a legitimate child of the deceased;

(b) an illegitimate child of a deceased mother; or

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

Adoption Act

10. (1) For all purposes an adopted child becomes upon adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock.

(2) For all purposes an adopted child ceases upon adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.

(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).

(4) Subsections (2) and (3) do not apply, for the purposes of the laws relating to incest and to the prohibited degrees of marriage, to remove any persons from a relationship in consanguinity which, but for this section, would have existed between them.

(5) This section is to be read subject to the provisions of any Act which distinguishes in any way between persons related by adoption and persons not so related.

(6) This section does not apply to the will of a testator dying before or to any other instrument made before the seventeenth day of April, 1920.

(7) This section applies to adoptions made by the Court or by

the Provincial Secretary under legislation heretofore in force.

11. An adoption effected according to the law of any other Province of Canada or of any other country or part thereof has the same effect as an adoption under this Act.

At the outset it is necessary to consider whether the provisions of Section 10 of the Adoption Act of British Columbia apply to an adoption effected under the provisions of the Adoption Act of Manitoba at a date prior to the introduction of Sections 10 and 11 into the Adoption Act of British Columbia. Section 10 of the British Columbia Act first appeared in its present form in 1956 with the exception that it did not then include subsection (7). See 1956 (S.B.C.), c. 2, s. 2. Section 11 first appeared in 1957 in the completely new Adoption Act substituted for the former Adoption Act which was repealed. See 1957 (S.B.C.), ec. 1. The section was subsequently amended by 1961 (S.B.C.), e. 1, s. 9.

It is clear that Section 11 applies to adoptions wherever made but there remains the question whether it applies to adoptions made prior to its first enactment in 1957.

In Re Jensen Estates (1963), 40 D.L.R. (2d) 469 at 484; 42 W.W.R. 513, Collins, J. referred to the provisions of Section 11 as they were in the 1957 Act and said:

That section 11 put beyond argument the fact that recognition will be given in this Province to the status of an adopted child acquired in the foreign jurisdictions referred to therein in spite of the abundance of conflicting views by judges and jurists given with respect to matters arising in other jurisdictions. It does not take away any recognition of that status which would be given by common law in British Columbia.

In C.P.R. Co. v. B.C. Forest Products Ltd. (1965), 55 D.L.R. (2d) 229; 54 W.W.R. 129, it was necessary for the Court to consider amendments made in 1954 to Section 11 of the Workmen ’s Compensation Act of British Columbia and the effect of those amendments on an indemnification clause in a lease entered into in 1952. The 1954 amendment to Section 11 added to subsection (4) of that section the words

. . . but the provisions of this subsection shall not affect any right which an employer may have against another employer arising out of an indemnity agreement or contract made between such employers.

In construing this language, Norris, J.A. said at p. 241 :

In my opinion, the words of the statute are plain, and indicate that they are referable to claims “arising” after the enactment of the amendment whether such claims arise out of past or future indemnity agreements.

He went on to refer with approval to the following excerpt from the judgment of Buckley, L.J. in West v. Gwynne, [1911] 2 Ch. 1, which appears at pp. 11, 12 of that report.

To my mind the word “retrospective” is inappropriate, and the question is not whether the section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law.

. . . As matter of principle an Act of Parliament is not without sufficient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights. To construe this section I have simply to read it, and, looking at the Act in which it is contained, to say what is its fair meaning.

Counsel were agreed and I hold that Section 11 must be construed as having application to adoptions effected both before and after its enactment in 1957. The result is that the adoption of Norman by Mr. and Mrs. Neville in Manitoba in 1949 has had the same effect since 1957 as if it had been an adoption made under the provisions of the Adoption Act of British Columbia that came into force in that year.

I turn now to a consideration of the meaning to be given to Section 10 of the Adoption Act of British Columbia. On behalf of the appellant it was contended that the effect of the section is, from the making of the adoption order, to alter the relationship between the adopted child, his natural parents and his adopting parents, but that the section has no effect on the status of the adopted child prior to the making of the adoption order. Counsel for the respondent on the other hand contended that the learned Judge below was correct in holding that by virtue of the provisions of Section 10 of the Adoption Act of British Columbia, Norman must now be deemed never to have been a child of the deceased. Since it was conceded that Norman had lived in the household of the deceased for a period of three years after his birth, it followed in the submission of the respondent that Norman must have been a person in relation to whom during his infancy the deceased stood in loco parentis. Norman would, therefore, be a child as that word is defined in clause (c) of Section 2(1) of the Succession Duty Act.

In reaching his conclusion the learned Judge below referred to the judgment of Aikins, J. in Re Dunsmuir (1968), 67 D.L.R. (2d) 227, 63 W.W.R. 321. In that case, Aikins, J., had to consider whether a child adopted at a time later than the making of a will, was a child within the meaning to be given to that term in the will. The child was born on December 29, 1948, at a time when his mother was unmarried. She subsequently married on January 28, 1950 and on July 11, 1951 she and her husband adopted the child pursuant to the adoption laws of Ontario. The will in question was made in 1937 at a time when the Adoption Act of British Columbia contained no provision. equivalent to the present Section 10.

After considering the decision in Re Gage, 28 D.L.R. (2d) 469; [1961] O.R. 540; affirmed on appeal to the Supreme Court of Canada, 31 D.L.R. (2d) 662 ; [1962] S.C.R. 241, Aikins, J. said at p. 239 [D.L.R.] :

I now go on to consider whether section 10, unlike the legislation in Ontario, is to be applied retrospectively. There would be no point to inquire into this question at all if it were not for subsection (6) of section 10 of our Act because in other respects our legislation is substantially the same as the provisions of the Ontario Child Welfare Act considered in Re Gage. For the sake ' of clarity I reproduce subsection (6) again, it reads:

(6) This section does not apply to the will of a testator dying before or to any other instrument made before the seventeenth day of April, 1920.”

The effect of subsection (6) is to limit the retrospective application of section 10 in terms of time so that it is not applicable to wills of testators dying before April 17, 1920, or to instruments made before that date. It is in my view quite impossible to suppose any explanation for subsection (6) which does not include the assumption that the Legislature understood that the words it used in section 10 were such as would require a Court to give retrospective effect to the substantive law thereby enacted. It follows, 1 think, that the Legislature must have intended sectior 10 to be applied retrospectively.

After reviewing the judgment of Aikins, J. in Re Dunsmuir, the learned Judge, below said:

Mr. Smith does not contend that Re Dunsmuir was wrongly decided and should not be followed here. But he made submissions, which I do not accept, as to its limited effect. Aikins, J., summarized his finding in the last paragraph of the passages which I “have just quoted. Having in mind the arguments addressed to me I just add this comment. The learned Judge held in effect that the inclusion in section 10 of subsection (6) revealed the intention of the Legislature that subsections (1) and (2) should be applied retrospectively in all cases where the relationship to one another of all persons is to be determined. It is not limited in application to interpretation of wills or other, instruments. The only limitation is that if the question of relationship happens to arise in connection with the interpretation of a will or instrument then section 10 does not apply if the testator died before April 17, 1920, or to an instrument made before that date.

Giving subsections (1) and (2) full retrospective effect re- b- ” suits in Norman being deemed in law for all purposes to have

been from birth the child of the Nevilles as if he had been born , to them in lawful wedlock, and never to have been a child of the deceased. But the subsections do not declare that in law, Norman’s living with the deceased and his natural mother for the first three years, of his life is deemed never to, have occurred—that this history is expunged. I have concluded that Mr. Ray is correct in his submission. The deceased took upon himself the duty of a father of the child Norman to make provision for him. By operation of law he never was Norman’s parent. He must, therefore, be taken to have assumed that duty in loco parentis.

I cannot accept the interpretation given to Section 10 of the Adoption Act by the learned Judge below. It may well be that in construing the intention of a testator Section 10(6) has the effect given to it by Aikins, J. in Re Dunsmuir. As to that I express no opinion. But, while subsection (6) of Section 10 may be called in aid in determining the intention of the testator, it seems to me it cannot be used in determining the meaning to be given to subsections (1) and (2) of Section 10 which by express language state the time when an adopted child becomes the child of his adopting parents and when he ceases to be the child of his natural parents. That time is when the adoption order is made. That result is made plain by the use of the words ‘becomes upon adoption” in the first line of subsection (1), the word “becomes” in the second line of subsection (1), the words “ceases upon adoption” 1 in the first line of subsection (2) and the word ‘‘cease’’ in the last line of subsection (2). It seems to me clear that an adopted child ceases to be the child of his natural parents only from and after the making of the adoption order, leaving unchanged his status as a child of his natural parents from birth to the making of the adoption order.

The result in my view is that up to the time of his adoption by the Nevilles in 1949, Norman was the child of the deceased and of the deceased’s former wife. From and after 1957 the Manitoba adoption order made in 1949 had the effect in this Province of making Norman ‘‘for all purposes’’ the child of the Nevilles and no longer the child of the deceased. Accordingly, the appellant properly applied column 4 of Schedule C to the Succession Duty Act. The appeal must be allowed and the classification of the bequest to Norman under the provisions of column 4 of Schedule C to the Succession Duty Act restored.