Canada: Is A Child Born Out Of Wedlock Entitled To Inherit Under British Columbia Succession Law?

Since 1927, legislation in British Columbia had provided that in cases of intestacy, children born out of wedlock would inherit on the same basis as children born in a marriage. The British Columbia Courts have also long adopted the approach that where there is nothing in the language of a Will to signify a different intention, the use of the word "child" or similar terminology will mean that the Will-maker intends to benefit children born out of wedlock as well as children born to married parents.

The sensible approach of the British Columbia Courts is consistent with the contemporary value and expectations of most Canadians because a child born out of wedlock is just as much the child of his or her parents as a child born to married parents.

However, the same approach has not been adopted by the courts across Canada. In a recent Ontario case, Koziarski Estate v. Sullivan, 2017 ONSC 2704 [Koziarski Estate], the Ontario Superior Court of Justice denied a man, who was born out of wedlock, a share of his grandmother's estate after the Court found the law at the time the grandmother's Will was made excluded children born outside of a marriage.

In Koziarski Estate, Mrs. Koziarski's Will provided that the residue of her estate would be divided equally amongst her children provided that if any of her children predeceased her, but leaving surviving issues, then such issue shall take in equal shares per stirpes the share that such deceased child would have taken if living.

When the Will was made in December 1977, Mrs. Koziarski had two adult sons and there was no grandchild. One son predeceased Mrs. Koziarski and left two children: one was born out of wedlock with another woman before he married his wife and one was born with his wife.

The issue before the Ontario Court is whether Jesse Sullivan, Mrs. Koziarski's grandson born out of wedlock, is entitled to share in the estate of Mrs. Koziarski per the terms of her Will. It is important to note that shortly after the Will was made in December 1977, the Ontario succession law changed in 1978 by the enactment of the following provisions in what is now Section 1(3) and (4) of the Succession Law Reform Act:

  1. (3) In this Act, and in any will unless a contrary intention is shown in the will, a reference to a person in terms of a relationship to another person determined by blood or marriage shall be deemed to include a person who comes within the description despite the fact that he or she or any other person through whom the relationship is traced was born outside marriage.
  2. (4) Subsection (3) applies in respect of wills made on or after the 31st day of March, 1978.

The executor of Mrs. Koziarski's estate conceded that the legislature of Ontario expressly intended to change the presumption that the use of the word "child", or similar terminology in a Will, would not include a person born out of wedlock. However, he argued that it was also clearly the intention of the legislature by enacting s. 1(4) that the change in the presumption was to be effective only with respect to Wills made on or after March 31, 1978. Since Mrs. Koziarski's Will was made in 1977, the then judgment-made law that the word "child" and similar terminology did not include persons born out of wedlock would apply.

Mr. Sullivan argued that s. 1(4) simply states that s. 1(3) is to be effective as of March 31, 1978 for wills made after that date. It says nothing about whether the courts can change the judge-made presumption for wills made prior to that date. Mr. Sullivan further argued that there is no reason in principle why judge-made law cannot be changed, based on the clear evolution of public policy as it relates to the status of children born out of wedlock.

The Ontario Court acknowledged the public policy consideration that social norms have changed significantly and that it makes little sense to construe the word "child" and similar terminology in anything but the child of a parent, whether the parent was married or not. However, the Court also indicated that the Court's policy choices are constrained by the policy choices made by the legislature.

In that regards, the Ontario Court looked into, amongst other things, the legislative debates that led to the enactment of s. 1(4) and found that the legislative debates reflect a deliberate decision of the legislature to restrict the application of s. 1(3) to wills made on or after March 31, 1978.

The Ontario Court concluded that to give effect to the argument of Mr. Sullivan would to be read s. 1(4) out of the Succession Law Reform Act, and the Court has no authority to read out of the Act a provision that has been duly enacted by the legislature.

At the end, the Ontario Court ruled reluctantly that Mr. Sullivan is not entitled to a share of his grandmother's estate. In making that decision, the Court also commented that if the Court were free to apply its own notions of public policy, it would have little difficulty interpreting Mrs. Koziarski's Will to include Mr. Sullivan as an "issue" of her deceased son. However, the Court must respect the policy choices made by the legislature.

The Ontario decision shows a need for greater guidance on how to apply public policy to the interpretation of wills so that the outcome reflects the current values of the society. Fortunately, in British Columbia, the legislation and the courts have historically recognized that children born out of wedlock have the same rights as children born in a marriage. Because of this historical recognition, a case of similar facts in British Columbia would have a different result as that in Ontario.

The potential discrepancies of decisions of courts of different jurisdictions illustrate again the importance of the proper venue to litigate a dispute (see the writer's previous article on domicile and jurisdiction). You should consider seeking legal advice if you have any doubt about which laws govern the estate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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