MORAND,
J.:—This
matter
was
heard
in
Weekly
Court
by
way
of
an
appeal
under
The
Succession
Duty
Act,
R.S.O.
1960,
c.
386.
The
facts
briefly
are
as
follows
:
The
deceased
Jane
Durand
Massie
during
her
lifetime
was
very
interested
in
the
performing
arts
and
became
friendly
with
Mr.
Harry
Thomas
Patterson,
founder
of
the
Stratford
Shakespearian
Festival,
who
is
also
the
founder
of
a
company
known
as
Canadian
Theatre
Exchange
Limited
(‘‘the
Company’’).
The
Company
had
no
substantial
financial
backing,
and
being
desirous
of
assisting
the
Company
financially,
the
deceased
in
or
about
the
month
of
September
1960
agreed
to
guarantee
a
loan
to
be
made
by
the
Bank
to
the
Company
in
the
sum
of
$15,000
for
which
amount
the
Company
gave
its
promissory
note
to
the
Bank
payable
on
demand.
At
about
the
same
time
the
deceased
executed
a
written
guarantee
in
favour
of
the
Bank
guaranteeing
to
the
Bank
due
payment
of
the
liabilities
of
the
Company
to
a
limit
of
$15,000.
The
Company
subsequently
went
bankrupt.
Certain
moneys
were
granted
by
the
Government
of
Canada
to
Canadian
Theatre
Exchange
Limited
by
which
the
Company
received
the
sum
of
$21,928.54
which
was
distributed
among
the
creditors
of
the
Company.
After
apportioning
the
share
applicable
to
the
amount
owing
to
the
Bank,
there
remained
due
to
the
Bank
the
sum
of
$10,587.55
which
was
paid
by
the
estate
of
the
deceased
pursuant
to
demand
therefor
by
the
Bank
on
or
about
March
31,
1966.
The
Minister
of
Revenue
(formerly
Treasurer
of
Ontario)
refused
to
allow
the
debt
as
a
deduction
from
the
dutiable
value
of
the
estate
pursuant
to
Section
3(5)
of
the
said
Succession
Duty
Act.
The
relevant
portions
of
the
said
Act
are
as
follows:
3.
(5)
In
determining
aggregate
value
and
in
determining
dutiable
value,
allowance
shall
be
made
for
reasonable
funeral
expenses
for
the
deceased,
for
debts
and
encumbrances
incurred
or
created
by
the
deceased
bona
fide
and
for
full
consideration
in
money
or
money’s
worth
wholly
for
his
own
use
and
benefit,
for
surrogate
court
fees
and
for
solicitor’s
fees
for
obtaining
probate
or
letters
of
administration
to
an
amount
not
exceeding
$100,
and
all
debts
and
encumbrances
for
which
allowance
is
made
shall
be
deducted
from
the
value
of
the
land
or
other
subject
of
property
liable
thereto,
but
allowance
shall
not
be
made,
(a)
for
any
debt
in
respect
of
which
there
is
a
right
to
reimbursement
except
such
part
thereof
for
which
reimbursement
cannot
be
obtained;
The
following
cases
were
cited
to
me
as
being
relevant
in
this
matter:
Attorney
General
v.
Duke
of
Richmond,
[1909]
A.C.
466;
In
re
Baroness
Bateman,
[1925]
2
K.B.
429;
Royal
Bank
of
Canada
v.
Kiska,
[1967]
2
O.R.
379
at
387;
;
In
re
Succession
Duty
Act
and
Sproule,
[1924]
2
W.W.R.
1087;
Guardian
Trust
v.
Commissioner
of
Stamp
Duties,
[1945]
N.Z.L.R.
15;
New
Zealand
Insurance
Company
Limited
v.
Commissioner
of
Stamp
Duties,
[1938]
N.Z.L.R.
89;
Lumbers
v.
M.N.R.,
[1943]
4
D.L.R.
216;
[1944]
C.T.C.
67;
In
re
Gray,
[1896]
1
Ch.
620;
Estate
of
Arthur
Warwick
Beament
v.
M.N.R.,
[1968]
C.T.C.
558;
Versailles
Sweets
Limited
v.
Attorney-General
for
Canada,
[1924]
3
D.L.R.
884.
To
put
the
matter
very
briefly,
the
section
of
the
Act
seems
to
clearly
state
the
words
that
‘‘the
debt
and
encumbrance
must
be
incurred
bona
fide’’
and
‘‘for
full
consideration
in
money
or
money’s
worth
wholly
for
his
own
use
and
benefit’’.
These
words
are
exhaustively
dealt
with
in
the
cases
above
cited
and
it
is
the
allegation
of
the
Minister
of
Revenue
that
this
debt
was
not
for
full
consideration
and
was
not
for
the
deceased’s
own
use
in
that
the
money
that
was
advanced
by
the
Bank
was
not
moneys
which
became
the
property
of
the
deceased
which
could
be
disposed
of
by
her
as
she
saw
fit,
and
also
that
what
she
got
was
not
money’s
worth
because
all
the
deceased
received
was
the
privilege
of
supporting
this
Company’s
aims
and
objectives.
Clearly,
had
the
deceased
borrowed
the
money
from
the
Bank
and
then
loaned
it
to
the
Company,
the
debt
would
be
deductible
from
the
estate.
In
my
view,
the
Minister
of
Revenue
should
fail
in
this
matter
and
I
find
that
the
debt
should
be
allowed
as
a
debt
of
the
estate
against
succession
duties.
I
am
aware
that
I
am
coming
to
a
different
conclusion
than
was
reached
in
the
two
cases
cited
in
New
Zealand
and
am
indeed
apparently
coming
to
a
different
conclusion
than
reached
in
Attorney
General
v.
Duke
of
Richmond
and
In
re
Bateman
(supra).
I
call
attention,
however,
to
the
words
used
by
Lord
Macnaughten
in
dismissing
an
appeal
by
the
Crown,
which
are
as
follows:
Then
comes
the
pinch
of
the
case.
Were
these
debts
and
incumbrances
incurred
and
created
“wholly
for
the
deceased’s
own
use
and
benefit”?
The
learned
counsel
for
the
Crown
say
“No.
They
were
mainly,
if
not
wholly,
for
the
benefit
of
the
deceased’s
successors.”
And
that
is
perfectly
true
in
the
result.
If
you
give
the
expression
its
strict
meaning,
adhering
slavishly
to
the
letter,
no
allowance
can
be
made
for
any
debt
incurred
by
the
deceased
or
any
incumbrance
created
by
him
which
in
the
slightest
degree
operates
for
the
benefit
of
any
other
human
being.
The
argument
must
go
this
length.
The
word
“wholly”
forbids
anything
short
of
of
it.
The
condition
that
a
debt
or
incumbrance
or
the
consideration
for
such
debt
or
incumbrance
(if
that
be
the
true
reading)
must
be
wholly
for
the
benefit
of
a
particular
individual
excludes
every
case
where
anybody
else
participates
in
the
benefit.
If
the
construction
for
which
the
appellant
contends
be
right,
a
man
who
burdens
his
property
to
portion
his
daughter,
to
educate
or
advance
his
son,
to
save
a
friend
from
ruin,
to
effect
some
lasting
improvements
on
his
estate
which
cannot
give
an
immediate
return,
or
to
promote
some
benevolent
object
or
some
object
of
real
or
supposed
public
utility,
to
endow
a
hospital,
for
instance,
or
save
a
famous
picture
for
his
country,
cannot
hope
for
an
allowance
from
the
Commissioners
of
Inland
Revenue.
That
concession
is
reserved
for
the
man
who
spends
on
himself
alone,
for
the
prodigal,
the
gambler,
and
such
like.
I
cannot
bring
myself
to
think
that.
the
Legislature
deliberately
intended
to
put
a
premium
on
extravagance
purely
selfish,
and
to
penalize
expenditure
on
objects
generally
considered
more
worthy.
This
matter
might
very
well
be
heard
by
another
Court
and
for
that
reason
I
do
not
propose
to
support
my
reasons
in
the
matter
with
reference
to
the
above-mentioned
cases.
The
following
facts
were
established
:
(1)
The
debt
was
bona
fide
and
this
was
agreed
to
by
the
Minister
of
Revenue.
(2)
It
was
for
full
consideration
in
money
or
money’s
worth
made
when
the
money
was
advanced.
As
a
result
of
this
total
transaction,
while
the
deceased
did
not
obtain
the
money
she
received
the
satisfaction
of
supporting
the
performing
art
in
which
she
was
greatly
interested.
(3)
The
money
was
for
her
own
use
and
benefit
as
the
use
to
which
the
money
was
put
is
the
use
to
which
she
subscribed
and
in
effect
directed.
The
Motion
of
the
Minister
therefore
is
dismissed
with
costs.
ESTATE
OF
ANDREW
LAWRENCE
CARPER,
Appellant,
and
MINISTER
OF
FINANCE
OF
BRITISH
COLUMBIA,
Respondent,
Supreme
Court
of
British
Columbia
(Macdonald,
J.),
February
10,
1969,
on
appeal
from
a
decision
of
the
Minister
of
Finance
of
British
Columbia.
olumbia.
Succession
duty—British
Columbia—Succession
Duty
Act,
R.S.B.C.
1960,
c.
372—Schedule
C—Adoption
Act,
R.S.B.C.
1960,
c.
4—Sections
10,
11—Bequest
to
child
of
deceased—Status
of
natural
child
after
adoption
by
new
parents—Whether
bequest
dutiable
at
rate
applicable
to
stranger
beneficiaries
(column
4
of
Schedule
C)
or
at
rate
applicable
to
child
of
deceased
(column
2
of
Schedule
C)—Effect
of
Adoption
Act—Retrospective
legislation.
About
three
years
after
the
birth
of
his
son
the
deceased
and
his
wife
were
divorced
and
the
child
was
placed
in
the
custody
of
its
mother.
The
mother
then
remarried
and
in
due
course
the
child
was
formally
adopted
by
the
new
couple.
When
the
deceased
died
he
left
$58,228
to
the
child
in
respect
of
which
the
Minister
sought
duty
under
column
4
of
Schedule
C,
as
for
a
stranger
beneficiary,
whereas
it
was
contended
for
the
appellant
that
duty
was
exigible
under
column
2,
as
for
a
child
of
the
deceased.
HELD:
The
relationship
of
the
deceased
with
his
child
was
governed
by
Sections
10
and
11
of
the
Adoption
Act
under
which,
with
retrospective
effect,
the
deceased
was
not
to
be
considered
the
parent
of
the
child.
While
it
followed
that
the
child
was
therefore
not
a
“child”
of
the
deceased
within
the
first
meaning
thereof
in
Section
2(1)
of
the
Succession
Duty
Act
(i.
e.
as
“a
legitimate
child
of
the
deceased”)
it
also
followed
that
the
child
could
qualify
as
a
child
of
the
deceased
under
the
third
meaning
thereof
(i.e.
as
a
person
to
whom
during
his
infancy
the
deceased
stood
in
loco
parentis).
Appeal
allowed.
Julian
Ray,
for
the
Appellant.
John
G.
Smith,
for
the
Respondent.
CASES
REFERRED
to
:
Re
Gage,
[1961]
O.R.
540;
[1962]
S.C.R.
241;
Re
Dunsmuir
(1968),
63
W.W.R.
321;
Shtitz
v.
C.N.R.,
[1927]
1
W.W.R.
193;
Royal
Trust
Co.
v.
Globe
Printing
Co.
Ltd.,
[1934]
O.W.N.
547.
MACDONALD,
J.:—This
is
an
appeal
pursuant
to
Section
44
of
the
Succession
Duty
Act,
R.S.B.C.
1960,
c.
372,
by
the
executor
of
the
estate
of
Andrew
Lawrence
Carper
from
the
decision
of
the
Minister
of
Finance
whereby
he
affirmed
an
assessment
of
duty
under
the
statute
in
the
sum
of
$21,332.52.
There
was
born
to
Andrew
Lawrence
Carper
(hereinafter
called
the
deceased)
and
to
his
wife
a
son
Norman
in
November,
1933.
The
child
lived
in
the
home
of
his
parents
until
they
separated
about
three
years
after
his
birth.
He
was
thereafter
in
the
custory
of
his
mother.
Not
long
after
the
separation
the
deceased
and
his
wife
were
divorced
and
Mrs.
Carper
married
Norman
Neville
in
July,
1937.
Norman
was
adopted
by
Norman
Neville
and
his
wife
(formerly
Mrs.
Carper)
on
September
19,
1949,
pursuant
to
the
Adoption
Act
of
the
Province
of
Manitoba.
The
deceased
died
domiciled
and
resident
in
British
Columbia
on
September
8,
1965.
He
bequeathed
$58,228.52
to
Norman
who
was
at
that
time
a
resident
of
this
Province.
Probate
of
the
will
of
the
deceased
was
granted
in
the
Vancouver
Registry
of
the
Court
and
all
the
assets
of
his
estate
had
situs
in
British
Columbia.
Duty
under
the
Succession
Duty
Act
was
assessed
in
the
amount
of
$12,995.82
upon
the
bequest
to
Norman
by
application
of
a
rate
set
out
in
column
4
of
Schedule
C
to
the
statute
which
is
a
rate
applicable
with
respect
to
property
passing
to
persons
commonly
described
as
strangers.
The
appellant
submits
that
the
rate
which
should
have
been
employed
is
the
appropriate
one
under
column
2
of
Schedule
C
which
prescribes
rates
in
respect
of
property
passing
to,
inter
alia,
the
child
of
a
deceased
person.
It
is
provided
as
follows
in
Section
2(1)
of
the
Succession
Duty
Act:
“child”
means
(a)
a
legitimate
child
of
the
deceased;
(b)
an
illegitimate
child
of
a
deceased
mother;
(c)
a
person
to
whom
during
his
infancy
the
deceased
stood
in
loco
parentis;
I
set
now
out
Section
10
of
the
Adoption
Act,
R.S.B.C.
1960,
c.
4,
as
well
as
Section
11
which
was
repealed
and
substituted
by
1961,
c.
1,
s.
5:
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
consan-
guinity
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.
The
appellant’s
position
is
that
Section
10
has
retrospective
effect
resulting
in
Norman
becoming
upon
adoption
for
all
purposes
the
child
of
the
Nevilles
as
though
he
had
been
born
to
them
in
lawful
wedlock,
and
ceasing
for
all
purposes
to
be
the
child
of
the
deceased.
It
goes
on
to
submit
that
when
Norman
resided
in
the
home
of
the
deceased
and
his
then
wife
for
some
three
years
after
birth,
the
deceased—who
cannot
by
law
be
regarded
as
his
father—stood
in
loco
parentis
and
accordingly
Norman
is
a
child
as
defined
in
the
Succession
Duty
Act.
The
respondent
argues
that
Section
10
as
it
applies
in
this
case
does
not
have
retrospective
effect;
that
the
deceased
only
ceased
to
be
Norman’s
parent
upon
the
adoption
and
so,
being
his
natural
father,
could
not
stand
in
loco
parentis
during
the
three
years
after
birth.
In
deciding
the
question
of
the
retrospective
effect
of
Section
10
two
authoritiies
must
be
considered.
The
first
is
Re
Gage,
a
decision
of
the
Ontario
Court
of
Appeal,
28
D.L.R.
(2d)
469;
[1961]
O.R.
540,
affirmed
by
the
Supreme
Court,
31
D.L.R.
(2d)
662;
[1962]
S.C.R.
241,
sub
nom.
Re
Gage;
Ketterer
et
al.
v.
Griffith.
The
second
is
a
judgment
of
my
brother
Aikins,
J.,
Re
Dunsmur
(1968),
67
D.L.R.
(2d)
227;
63
W.W.R.
321,
in
which
Re
Gage
would
have
been
applied
but
for
a
difference
between
the
provisions
of
our
Adoption
Act,
Section
10,
and
Section
76
of
The
Child
Welfare
Act,
R.S.O.
1960,
c.
53.
That
difference
was
explained
in
this
way
by
Aikins,
J.,
on
pp.
237-8
:
The
statutory
provisions
which
Roach,
J.A.,
had
to
consider
in
Re
Gage
are
Sections
76
and
77
of
The
Child
Welfare
Act,
R.S.O.
1960,
c.
53
[now
1965
(Ont.),
c.
14],
which
were
introduced
into
the
Act
as
Sections
74
and
75
by
The
Child
Welfare
Amendment
Act,
1958
(Ont.),
c.
11,
s.
3.
Section
76
of
the
Ontario
Act
has
four
subsections
which
correspond
with
the
first
four
subsections
of
Section
10
of
our
Act.
Section
76(1)
of
the
Ontario
Act
differs
slightly
in
wording
from
Section
10(1)
of
our
Act
but
the
difference
in
wording
does
not
in
my
opinion
affect
any
substantial
difference
in
meaning
and
for
the
purposes
of
this
application
I
‘treat.
the
two
sections
as
having
the
same
meaning.
Likewise
Section
76(2)
and
(3)
of
the
Ontario
Act
while
differing
slightly
in
wording
from
Section
10(2)
and
(3)
of
the
British
Columbia
Act
are
substantially
the
same
and
for
the
purposes
of
this
application
I
consider
the
subsections
of
the
Ontario
Act
to
have
the
same
meaning
as
the
corresponding
subsections
of
our
Act.
Section
76(4)
of
the
Ontario
Act
corresponds
to
subsection
(4)
of
Section
10
of
our
Act
and
does
not
require
consideration.
Section
77
(Ontario
Act)
provides
that:
“77.
Every
person
heretofore
adopted
under
the
laws
of
Ontario
and
every
person
adopted
under
the
laws
of
any
other
province
or
territory
of
Canada
or
under
the
laws
of
any
other
country
shall
for
all
purposes
in
Ontario
be
governed
by
this
Part.”
Section
77
is
the
equivalent
of
Section
10(7)
of
our
Act
taken
with
Section
11
of
our
Act.
It
will
be
noted
that
the
Ontario
and
British
Columbia
legislation
are
substantially
the
same
with
these
exceptions:
the
Ontario
Act
has
no
provision
similar
to
our
Section
10(5)
and
has
no
provisions
similar
to
Section
10(6)
of
our
Act.
I
interject
here
to
say
that
if
it
were
not
for
the
presence
in
our
Act
of
Section
10(6)
I
would
have
no
doubt
whatsoever
on
the
authority
of
Re
Gage
that
Section
10
could
not
be
applied
retrospectively.
Roach,
J.A.,
who
gave
the
judgment
of
the
Court
of
Appeal,
having
found,
(1)
that
the
testator
when
referring
to
the
‘children”
of
his
daughters
did
not
intend
to
include
in
that
class
adopted
children
because
when
he
made
his
will
and
up
to
his
death
there
was
no
legislation
in
Ontario
respecting
the
adoption
of
children,
and
(2)
where
the
word
‘‘child’’
is
used
in
a
testamentary
document
it
means
a
lawful
child
procreated
by
the
person
named
unless
the
language
of
the
document
plainly
indicates
a
contrary
intention
and
there
was
nothing
to
indicate
that
the
testator
used
the
word
‘‘child’’
otherwise
than
having
its
ordinary
meaning,
went
on
to
say
at
p.
473:
Accordingly,
unless
subsequent
legislation
has
the
effect
of
extending
the
meaning
of
the
word
“child”
beyond
the
meaning
intended
by
the
testator
and
so
as
to
include
therein,
for
the
purposes
of
his
will,
adopted
children,
then
the
adopted
children
of
Mrs.
McCormick
do
not
benefit
under
his
will.
He
determined
that
question
after
setting
out
Sections
76
and
77
of
The
Child
Welfare
Act
by
saying
this
at
pp.
473-4:
It
is
common
ground
between
all
the
parties
to
this
appeal
that
the
determination
of
the
issue
herein
depends
upon
the
construction,
meaning
and
effect
of
those
two
sections.
Those
sections
make
the
status
of
adopted
children,
whether
adopted
prior
or
subsequent
to
the
passing
thereof,
that
of
natural
born
children
of
the
adopting
parents.
The
question
here,
however,
is
not
one
of
status
but
of
the
intention
of
the
testator.
In
a
case
of
intestacy
certainly
the
status
of
the
adopted
children
is
the
governing
factor.
As
I
earlier
stated,
we
know
without
any
doubt
what
the
intention
of
the
testator
was.
The
only
debatable
question
here
is,—What
was
the
intention
of
the
Legislature
in
passing
those
two
sections?
Did
it
intend
thereby,
in
addition
to
defining
the
status
of
adopted
children,
to
interfere
with
the
dispositions
of
an
estate
made
by
a
testator
who
had
died
prior
to
the
passing
of
the
legislation.
Having
stated
that
question,
I
answer
it
at
once
by
saying
that
in
my
respectful
opinion
the
Legislature
did
not
so
intend.
Therefore,
the
Court
held
that
Mrs.
McCormick,
a
daughter
of
the
testator
having
died,
her
three
adopted
children
did
not
come
within
the
scope
of
the
provision
for
her
children
under
the
will
in
question.
In
the
Supreme
Court
of
Canada
Cartwright,
J.,
delivering
the
judgment
of
himself
and
Locke,
J.,
who,
with
the
Chief
Justice,
constituted
the
majority,
agreed
with
the
reasons
and
conclusions
of
Roach,
J.A.,
but
emphasized
the
ground
for
the
decision
by
saying
this
at
p.
664
D.L.R.,
p.
244
8.C.R.:
The
question
before
us
is
not
whether
the
three
appellants
have
for
all
purposes
the
status
of
children
born
in
lawful
wedlock
to
the
late
Mrs.
McCormick;
it
is
rather
whether
on
the
true
construction
of
the
language
used
by
the
testator
in
his
will
he
intended
that,
in
the
events
that
have
happeneo,
they
should
take
as
beneficiaries.
I
come
now
to
the
facts
in
Re
Dunsmuir.
The
testator
made
her
will
in
1937,
and
died
domiciled
in
British
Columbia
the
same
year.
By
her
will
she
left
a
life
interest
in
a
portion
of
her
estate
to
four
named
grandchildren
with
remainder
to
their
children.
All
four
grandchildren
survived
the
testatrix
and
the
last
named,
Elizabeth
Clarke,
a
granddaughter,
died
in
1965
leaving
her
surviving
a
son
born
to
her
in
1948
whom
she
and
her
husband
adopted
in
Ontario
in
the
year
following
their
marriage
which
took
place
in
1950,
and
a
daughter
born
in
Victoria
in
1960.
Elizabeth
Clarke
and
her
husband
separated
in
1956
and
Mr.
Justice
Aikins
found
that
the
husband
was
not
the
father
of
the
daughter
born
to
this
granddaughter
in
Victoria.
The
Court
was
asked
to
determine
whether
either
or
both
of
Elizabeth
Clarke’s
children
were
‘‘children’’
within
the
meaning
of
the
residuary
clause
in
the
will
and
so
entitled
to
share
in
the
capital
of
the
residue.
In
answering
that
question
affirmatively,
Aikins,
J.,
found
that
it
was
the
intention
of
the
Legislature
that
Section
10
of
the
Adoption
Act
should
be
applied
retrospectively.
His
reasons
for
that
conclusion
appear
from
these
passages
of
his
judgment
on
pp.
239-40:
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
inquiry
into
ths
ueston
at
all
if
it
were
not
for
subsection
(6)
of
Section
10
of
our
Act
because
in
other
respects
our
legislation
in
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,
I
think,
that
the
Legislature
must
have
intended
Section
10
to
be
applied
retrospectively.
If
one
assumes
that
there
was
no
such
intention
one
is
led
to
this
absurdity:
that
the
Legislature
understood
the
words
of
its
enactment
to
be
such
as
to
require
retrospective
application,
that
the
Legislature
accordingly
limited
retrospective
application
by
enacting
subsection
(6),
but
that
the
Legislature
did
not
in
fact
intend
that
the
section
have
retrospective
application.
I
find
that
I
cannot
escape
the
conclusion
that
the
Legislature
must
have
intended
that
the
law
as
enacted
by
Section
10
be
applied
retrospectively
within
the
limit
stated,
namely,
to
the
wills
of
testators
dying
after
April
17,
1920,
and
to
instruments
made
after
that
date.
The
next
consideration
I
pass
on
to
is
this
:
it
may
be
said
that
it
is
all
very
well
for
the
Legislature
to
limit
the
retrospective
effect
of
a
particular
enactment
but
that
surely
before
that
enactment
may
be
given
retrospective
application
it
must
appear
that
the
words
of
the
enactment
itself
can
reasonably
be
construed
as
capable
of
retrospective
application.
With
this
consideration
in
mind
I
now
go
on
to
a
consideration
of
subsections
(1),
(2)
and
(3)
of
Section
10.
Subsections
(1)
and
(2)
set
out
the
law
as
to
the
status
of
an
adopted
child.
By
these
two
subsections
an
adopted
child
is
given
the
status
of
a
child
born
in
lawful
wedlock
to
its
parents
by
adoption
and
its
relationship
to
its
natural
parents
is
extinguished.
Subsection
(3)
is
directory.
The
word
“shall”
is
used.
I
think
it
beyond
doubt
that
subsection
(3)
contains
a
mandatory
direction
which
a
Court
must
follow
in
determining
relationships.
In
the
result
if
a
Court
is
charged
with
determining
the
relationship
of
A,
an
adopted
person,
to
B,
the
adopting
parent,
the
Court
must
apply
subsections
(1)
and
(2)
of
Section
10
and
in
so
doing
find
that
A
is
the
child
of
B
as
if
born
in
lawful
wedlock
to
B.
The
question
is,
can
the
substantive
provisions
of
subsections
(1)
and
(2)
of
Section
10
be
reasonably
construed
so
as
to
have
retrospective
application
to
the
will
of
the
testatrix
who
died
in
1937?
I
am
of
the
opinion
that
they
can
be
so
construed.
Under
subsection
(3)
the
Court
in
determining
the
relationship
of
an
adopted
person
must
apply
the
substantive
law
set
out
in
subsections
(1)
and
(2)
of
Section
10.
On
doing
so
in
the
present
matter
I
am
bound
to
conclude
that
the
adopted
son
became
the
child
of
the
adopting
parents
as
if
born
in
lawful
wedlock.
The
son,
then,
having
“become”
the
son
of
the
adopting
parents
as
if
born
in
lawful
wedlock
must
be
treated
as
such.
Mark
James
Clarke
is
therefore
a
child
of
Elizabeth
Clarke
within
the
testatrix’s
intent
in
using
the
word
“child”
in
her
will,
not
because
the
testatrix
intended
to
include
adopted
children
but
because
he
has
become
a
child
as
if
born
in
lawful
wedlock
to
his
mother
and
as
such
comes
within
the
testatrix’s
intention
in
using
the
word
“child”.
I
digress
at
this
point
to
say
that
I
am
strengthened
in
my
conclusion
that
the
Legislature
must
have
intended
that
Section
10
have
retrospective
application
because
the
date
selected
to
limit
the
retrospectie
application
of
this
section
to
wills
or
other
instruments
is
April
17,
1920,
which
is
the
date
upon
which
assent
was
given
to
the
first
Adoption
Act
passed
by
the
Legislature:
Adoption
Act,
1920
(B.C.),
c.
2.
In
summary
I
hold
that
it
was
the
intent
of
the
Legislature
that
Section
10
be
applied
retrospectively
and
I
hold
that
the
language
used
in
Section
10
may
be
reasonably
applied
in
such
a
way
as
to
be
retrospective
in
effect.
As
well
I
am
satisfied
that
to
do
other
than
give
retrospective
effect
to
Section
10
would
involve
treating
subsection
(6)
as
having
no
significance
at
all
and
indeed
would
render
the
inclusion
of
subsection
(6)
an
absurdity.
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.
I
therefore
accede
to
the
first
submission.
in
the
appellant’s
argument,
and
go
on
to
consider
the
second,
which
is,
that
the
deceased
stood
towards
Norman
in
loco
parentis
for
the
first
three
years
after
his
birth.
As
to
the
meaning
of
this
phrase
the
judgment
of
Turgeon,
J.A.,
in
Shtitz
v.
C.N.R.,
[1927]
1
D.L.R.
951;
21
S.L.R.
345;
[1927]
1
W.W.R.
193,
contains
the
following
on
p.
959
:
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.
In
22
Cyc.,
p.
1066,
n.
36,
the
following
definition
of
the
phrase
in
loco
parentis
is
given:—
“When
used
to
designate
a
person
it
means
one
who
means
to.
put
himself
in
the
situation
of
a
lawful
father
to
the
child,
with
reference
to
the
offce
and
duty
of
making
provision
for
the
child.”
A
full
discussion
of
the
subject
will
be
found
in
Powys
v.
Mansfield
(1836),
6
Sim.
528,
58
E.R.
692.
The
phrase
was
also
considered
by
the
Ontario
Court
of
Appeal
in
Loyal
Trust
Co.
v.
Globe
Printing
Co.
Ltd.,
[1934]
O.W.N.
047.
Riddell,
J.A.,
said
this
in
connection
with
the
question
whether
a
man
killed
in
an
accident
stood
in
loco
parentis
to
his
sister,
on
pp.
549-50
:
Our
own
Courts
do
not
give
much
assistance
in
the
enquiry.
In
Howie
v.
Lawrence
(1926),
59
O.L.R.
641,
Grant,
J.,
considered
that
one
who
took
the
illegitimate
son
of
his
daughter
and
from
his
birth
actually
adopted
and
maintained
him,
though
the
adoption
was
not
under
the
existing
statute,
had
him.
brought
up
in
his
home,
fed,
clothed,
sent
to
school,
and
otherwise
treated
as
a
child
of
his
own,
should
be
held
to
be
in
loco
parentis;
and
the
learned
Judge
adopted
the
definition
given
in
Stroud's
Judicial
Dictionary
“one
who
takes
upon
himself
the
duties
of
a
father
to
make
provision
for
a
child”.
Turning
to
the
English
cases,
in
Ex
parte
Pye
(1811),
18
Ves.
Jr.
140,
Lord
Eldon
declined
to
hold
in
loco
parentis
the
father
of
an
illegitimate
daughter
though
he
had
provided
for
her
during
his
life,
giving
her
a
marriage
portion,
etc.,
acceding
to
the
argument
that
he
“could
not
be
considered
as
having
taken
upon
him
the
character
of
parent”.
The
test
apparently
is
suggested
at
p.
148:
was
“the
legatee
not
standing
in
the
relation
of
child
to
him,
regarded
by
him,
quasi
in
that
relation,
conceiving
the
purpose
of
placing
himself
in
loco
parentis?"
And
Lord
Eldon,
pp.
153,
154,
considers
that
the
person
must
mean
to
put
himself
in
loco
parentis,
in
the
situation
of
the
lawful
father
of
the
child.
In
Wetherby
v.
Dixon
(1815),
19
Ves.
Jr.
406,
Sir
William
Grant,
M.R.,
speaks
of
“a
person
assuming
the
parental
character”.
In
Powys
v.
Mansfield
(1838),
3
My.
&
Cr.
359,
Lord
Chancellor
Cottenham
adopts
the
definition
of
Lord
Eldon
in
Ex
parte
Pye
(supra)
and
says,
p.
367:
“Lord
Eldon
says,
it
is
a
person
‘meaning
to
put
himself
in
loco
parentis;
in
the
situation
of
a
person
described
as
the
lawful
father
of
the
child’;
but
this
definition
must,
I
conceive,
be
considered
as
applicable
to
those
parental
offices
and
duties
to
which
the
subject
in
question
has
reference,
namely,
to
the
office
and
duty
of
the
parent
to
make
provision
for
the
child.
The
offices
and
duties
of
a
parent
are
infinitely
various,
some
having
no
connection
whatever
with
making
a
provision
for
a
child;
and
it
would
be
most
illogical,
from
the
mere
exercise
of
any
of
such
offices
or
duties
by
one
not
the
father,
to
infer
an
intention
in
such
person
to
assume
also
the
duty
of
providing
for
the
child.”
In
Bennet
v.
Bennet
(1879),
10
Ch.
D.
474,
Jessel,
M.R.,
adopts
the
language
of
Lord
Cottenham,
and
says,
at
p.
477,
“So
that
a
person
in
loco
parentis
means
a
person
taking
upon
himself
the
duty
of
a
father
of
a
child
to
make
provision
for
that
child.
It
is
clear
that
.
..
the
presumption
can
only
arose
from
the
obligation
.
.
.
the
obligation
of
a
father
to
provide
for
his
child.”
The
other
cases
do
not
carry
the
matter
any
further,
nor
is
there
to
be
found
any
doubt
cast
upon
the
accuracy
of
the
definition
of
a
person
in
loco
parentis
given
by
Jessel,
M.R.,
in
the
last
mentioned
case.
Masten
and
Macdonnell,
JJ.A.,
however,
were
not
ready
to
lay
it
down
as
a
rule
of
law
that
one
cannot
stand
in
loco
parentis
unless
it
is
established
that
he
brought
himself
under
a
legal
obligation
to
provide
for
the
child.
Giving
subsections
(1)
and
(2)
full
retrospective
effect
results
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
wife
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.
The
appeal
is,
therefore,
allowed.
As
the
point
is
novel
I
think
thé
parties
should
be
left
to
pay
their
own
costs.
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