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I set now out Section 10 of the Adoption Act, R.S.B.C. 1960, c. 4, as well as Section 11 which was repealed and substituted by 1961, c. 1, s. 5: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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