Latreille v. Vallée, [1975] 1 SCR 171

Supreme Court of Canada

Latreille v. Vallée, [1975] 1 S.C.R. 171

Date: 1974-01-22

Michel Latreille (Plaintiff) Appellant;

and

Gilberte Vallée and Lilianne Vallée (Defendants) Respondents;

and

René Langevin Mis-en-cause;

and

The Provincial Bank of Canada Garnishee.

1973: December 10, 11; 1974: January 22.

Present: Fauteux C.J. and Abbott, Martland, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Will—Adopted child—Bequest by adopting father’s father to his son’s children born in lawful wedlock—Adopted child excluded—Adoption Act, R.S.Q. 1964, c. 218, ss. 16, 18 and 21—Civil Code, art. 614.

Appellant is Raoul Latreille’s adopted son. He claims part of the estate of Osmond Latreille, the father of Raoul who died after him. In his will Osmond Latreille provided that the net income from the residue of his estate would be paid to his son, and on the latter’s death, the residue was to be distributed to his son’s children born in lawful wedlock; and if there were no descendants, to a nephew who predeceased Raoul and two nieces who are the respondents. Appellant’s action, which was based on the provisions of the Adoption Act, was allowed by the Superior Court but dismissed by the Court of Appeal. Hence the appeal to this Court.

Held: The appeal should be dismissed.

The words used in the will “to the children born in lawful wedlock of my said son” indicated clearly that an adopted child was excluded. The legislature, in the statutory form provided for a birth certificate of an adopted child, simply says “son” or “daughter” of the adopter and his wife, not “lawful son” or “lawful daughter”, as is the case with the birth certificate of a lawful child. This difference ties in with the limitations contained in ss. 16 and 18 of the Adoption Act. The adopted child is not treated in every respect as the adopting parents’ own child. Further, “he shall

[Page 172]

not succeed to those related or allied to his adopting parents”.

APPEAL from a jugment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, reversing a judgment of the Superior Court. Appeal dismissed.

L.P. de Grandpré, Q.C., and Paul Leduc, for the plaintiff, appellant.

Jacques Marchessault, Q.C., and Jean Lefran-çois, for the defendants, respondents.

The judgment of the Court was delivered by

PIGEON J.—Appellant is the adopted son of Raoul Latreille. He was born on June 26, 1939 and the adoption judgment was delivered on August 5, 1940. The property he is claiming is part of the estate of Osmond Latreille, who died on May 10, 1939 and made a will in authentic form on December 30, 1938. Aside from certain specific bequests this document provides that the net income from the residue will be paid to his son, Raoul Latreille, during his lifetime. On June 3, 1968 Raoul Latreille died. With regard to the residue of the property after his death, the will instructs the executors:

[TRANSLATION] (3) Within six months of the date on which the death of my son RAOUL is known, to distribute the residue of the property in my estate, capital and interest accumulated since the death of my son RAOUL, to the children born in lawful wedlock of my said son, or representatives by roots, who are hereby constituted my beneficial legatees in ownership…

(4) If my son RAOUL dies without descendants born in lawful wedlock; my fiduciary legatees and executors in office shall, within six months of the date on which his death is known, distribute the residue of the property in my estate in capital and accumulated income as follows:

(a) One third to my nephew, ROMÉO LATREILLE;

(b) One third to my niece, Mrs. GASTON LOIGNON, née GILBERTE VALLÉE;

(c) One third to my niece, Mrs. ALBERT FORGET, née LILIANNE VALLÉE;…

If one of these said three beneficial legatees dies before my son RAOUL, without leaving descendants

[Page 173]

born in lawful wedlock, his or her share shall accrue to his two other co-legatees, in equal shares, or to the representatives born in lawful wedlock of a predeceased beneficial legatee, by roots.

Clearly, the ordinary meaning of these provisions does not entitle appellant to make any claim. The only question is whether he is a beneficial legatee of Osmond Latreille by virtue of the provisions of the Adoption Act (R.S.Q. 1964, c. 218). The relevant provisions are the following:

16. From and after the judgment granting the adoption:

(1) The parents, tutor or person entrusted with the custody and care of the child shall lose all the rights they possessed under the civil law, and be freed from all the legal obligations by which they were bound with respect to such child;

(2) The child adopted shall in every respect be considered, with regard to such custody, obedience to parents and the obligations of children towards their father and mother, as the adopting parents’ own child;

(3) The adopting parents shall be bound to maintain and bring up the child as if it were their own.

18. (1) The adopted person shall take out of the property which the adopting parents may freely dispose of by will, if the latter die intestate, the same share that he would have taken if born to such parents in lawful wedlock, but he shall not succeed to those related or allied to his adopting parents.

21. The word “child” or any other word of the same meaning in any other act or in a deed, shall include also an adopted child unless the contrary clearly appears; but it shall not include the adopted child when it relates to a substitution in which the adopter’s own children are the institutes or substitutes.

The Superior Court allowed appellant’s claim, saying:

[TRANSLATION] In my opinion it is far from clear that the testator intended to exclude from his will an adopted child, in this case plaintiff, the adopted child of his son Raoul, and I find nothing in the will in question to indicate that the testator intended such an exclusion.

[Page 174]

In my view, under the provisions of the Adoption Act the adopted son of Raoul Latreille became a child born in lawful wedlock of the said Raoul Latreille.

The Court of Appeal unanimously set aside this decision, Mr. Justice Hyde saying:

The problem for us is, of course, whether the words used in the will and in particular,

[TRANSLATIONS] “to the children born in lawful wedlock of my said son”

indicated clearly that an adopted child was excluded. This Court in the case of Trihey et al v. Graham, [1969] Q.B. 890, confirmed a decision of the Superior Court that the testator in using the words “lawful issue” did not clearly indicate that he did not wish to have children adopted by his own children excluded from his Will. The trial judge in that case had presented a very carefully reasoned judgment supported by authority in reaching this conclusion. I was a member of that Bench and I concurred in the opinion of the Chief Justice accepting that conclusion and I have no reason to change the views expressed in that case.

However, in the present instance the words used are more limiting than “lawful issue”.

I note that in Sec. 18 of the Act where the legislature declared that an adopted person would inherit the estate of any adopting parents who died intestate it used exactly the same terms as the testator in the present instance to distinguish between an adopted and the ordinary child.

I do not believe that the testator could have used words more clearly to exclude an adopted child unless he had actually excluded an adopted child in specific terms.

Mr. Justice Brossard agreed with him and added:

[TRANSLATION] The difference between the expression “lawful issue”, on which this Court had to rule in Trihey et al. v. Graham [1969] B.R. 890, and the phrase “to the children born in lawful wedlock of my said son” which is in question here, could be and may be that which separates a filiation presumed ex post facto and a filiation genuine and lawful ab initio.

In the case at bar the testator based the right of succession exclusively on filiation genuine and lawful

[Page 175]

ab initio; the exclusive nature of the disposition precluded a filiation merely presumed ex post facto; it was therefore clearly contrary to devolution of the estate on an adopted child.

Counsel for the appellant responded to this reasoning, first, with the argument that the expressions used by the testator were the equivalent of “enfants légitimes”, that is the equivalent in French of “lawful issue”, a phrase which the Court of Appeal has held not to exclude adopted children. I do not feel it is advisable to consider what this Court would hold in such a case. In this Court questions that may arise in other cases should not be judged beforehand unless there is good reason for doing so. In any event, this does not appear to me to be obvious. It should be noted that the legislature, in the statutory form provided for a birth certificate of an adopted child, simply says “son” or “daughter” of the adopter and his wife, not “lawful son” or “lawful daughter”, as is the case with the birth certificate of a lawful child. This difference is certainly intentional and ties in with the limitations contained in ss. 16 and 18, cited above. The adopted child is not treated in every respect as the adopting parents’ own child, but merely “with regard to such custody, obedience to parents and the obligations of children towards their father and mother”. Furthermore, “he shall not succeed to those related or allied to his adopting parents”.

No weight can therefore be given to the comments of certain writers who have dealt in general terms with the assimilation of the status of an adopted child to that of a child born in lawful wedlock without at the same time mentioning, the limitations expressed in the statute. It is equally impossible to endorse the expressions brought to our attention found in certain decisions where the law is said to have intended to integrate, as completely as possible, the adopted child into the adopting family. On the contrary, it must be said that the legislature has seen fit, in the order of succession, not to integrate the adopted child into the whole family, and has given it the right to succeed only to the adopting parents. This being so, there is nothing unusual

[Page 176]

in interpreting a clause in the “grandfather” ’s will to exclude from inheritance a child who is not an heir in the order of ab intestate succession.

It was suggested that, by adding the words “born in lawful wedlock of my said son”, the testator sought to exclude any illegitimate issue. This is not impossible, but there is no proof that this is all he intended. In any event, the word “children” by itself does not include illegitimate children, as appears from arts. 614 et seq. of the Civil Code and the decision of this Court in The Town of Montreal West v. Hough[1]. Nothing that was said in Latreille v. Lamontagne and Carrière[2], bears on the question of what should be considered as “clearly” showing that the word “child”, or another word with the same meaning, shall not include an adopted child. What the Court decided was that adopting parents, as well as the adopted child, have the benefit of the action given by art. 1056 of the Civil Code. Nothing else was considered in that case than [TRANSLATION] “this fiction of the law which creates a lawful filiation between the adopted and the persons adopting”.

It does not appear to me that an analysis of the decisions rendered under the law of Ontario would be useful. The wording of s. 21 is not identical with the corresponding provision in the Ontario statute, passed some years earlier. The amendments introduced subsequently obviously would not assist in construing the earlier law. In any event, we are concerned here with a will that was made under a rule of unlimited freedom to bequeath, which will is to be construed without departing from the words used save as may be necessary. The language of s. 21 of the Adoption Act does not, in my view, make it necessary.

The appeal should be dismissed with costs.

Appeal dismissed with costs.

[Page 177]

Solicitors for the plaintiff, appellant: Prévost, Trudeau, Bisaillon & Leduc, Montreal.

Solicitors for the defendants, respondents: Geoffrion & Prud’homme, Montreal.