Court still seeks appropriate case to expand definition of "children" in wills variation legislation

Doman Peri v. Doman Estate, 2011 B.C.J. No. 1904

In this case the court was presented with an opportunity to expand the meaning of “child” or “children” in the Wills Variation legislation and possibly reconsider the decision in Hope v. Raeder

Ms. Peri was born in Seattle in 1955 and her birth certificate and immigration card listed the testator as her father.  The testator was married to her birth mother but he was aware that she was not his biological child (DNA testing confirmed).  The couple were from a small BC community and had travelled to Washington for the birth so as to avoid attention.  Ms. Peri was eventually placed in foster care in B.C. and attended boarding school.  Although the testator had made it clear she was not part of their family, the testator provided financial support associated with the costs of raising her and maintained contact through telephone calls and visits. 

In 1982 Ms. Peri had signed a contract with the testator and her birth mother which detailed that she would not pursue any claims against either of their estates in exchange for $25,000.  This agreement was not in issue in this proceeding.

The testator passed away and did not provide for Ms. Peri in his will.  She brought an application under the WVA for variation of the testator’s will and also to challenge the meaning of “children” in the legislation.

The judges held that, on these facts, they were not willing to expand the definition of “children”.  On the evidence, it was quite clear that the testator had no intention of acting as a father to Ms. Peri; he even went out of his way to maintain physical and emotional distance from her.  

The judges were bound by the decision of Hope v. Raeder which detailed that “children” in s.2 of the WVA was restricted to natural or adopted children of the testator/rix.  They left it open to a future case with more appropriate facts to properly revisit the definition of "children" in the legislation.  

With the enactment of the WESA, there was an opportunity to expand the meaning of “children” but it was not taken.  The WESA maintains the previous definition and limits the claims to natural and adopted children.  

21     As earlier noted, the Hope decision states that the only children who are entitled to claim under the Act are natural or adopted children of the testator. Ms. Peri is neither a natural nor an adopted child of the Testator.

22     An adopted child is entitled to claim under the Act because, under s. 37 of the Adoption Act, R.S.B.C. 1996, c. 5, when an adoption order is made:

  • (a) the child becomes the child of the adoptive parent,
  •  (b) the adoptive parent becomes the parent of the child, and
  • (c) the birth parents cease to have any parental rights or obligations with respect to the child ...

23     The question is whether this Court should reconsider the limited meaning which has been attributed to the word "children" under s. 2 of the Act to include children who do not qualify as either natural or adopted children of the testator. In particular, should the meaning of "children" under the Act be expanded such that the nature of Ms. Peri's relationship with the Testator falls within that expanded meaning?

24     In Hope, this Court considered whether a child who lived with the testator and his wife from shortly after the child's birth until the age of 17 was a child within the meaning of the Act. This Court found that the child lived and was treated in all respects as if she were a child of the testator and his wife. There was evidence that the testator and his wife had indicated in immigration papers that they intended to adopt the child when they brought her into Canada from Germany; that they consented to the child's marriage when she was 17; and that the wife signed a consent to medical treatment for the child as the child's mother.

25     Many of the same arguments were made in the Hope case as were made in this appeal as to why the meaning of "child" or "children" under the Act should, or should not, be expanded. Reference was made in Hope to the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, in which that court referred to the Act as remedial social legislation which should be interpreted in relation to contemporary standards, including a consideration of the treatment of spouses and children under other family legislation. In Hope, this Court distinguished Tataryn and, in so doing, referred to perceived difficulties in crafting a definition of "child" or "children" which would not create uncertainty. In the result, this Court concluded that the task of expanding the scope of who qualified as a child "was not open to us".

26     The question, as I see it, is not whether the Court can provide for a more expansive interpretation of the word "children" under the Act, but whether a compelling argument has been made to do so. In Hope, this Court found the arguments for leaving this task to the Legislature more persuasive than arguments to the contrary.

27     As earlier stated, the difficulty I have with the proposition that this Court should expand the scope of children entitled to claim under s. 2 of the Act is that I am unable to see how Ms. Periwould qualify as a child on the basis of any submission before the Court.

28     In discussing the various factors referred to by the chambers judge as alleged indicia of a father-child relationship between the Testator and Ms. Peri (quoted above at para. 14), counsel for Ms. Peri placed considerable weight on the fact that the Testator identified himself as Ms. Peri's father on her registration of birth and on a Canadian immigration document. Under s. 3 of the Vital Statistics Act, R.S.B.C. 1996, c. 479, the mother and father of a child must complete and deliver to the chief executive officer a statement which includes the names of the mother, father and child, within 30 days of the birth of a child born in British Columbia. There is a similar provision in comparable legislation in the State of Washington where Ms. Peri was born. Under both statutes, there are penalties for false declarations. Thus, the Testator could have been viewed under the Vital Statistics Act and its Washington equivalent as presumptively the "legal" father of Ms. Peri. As such, and in the absence of evidence that he was not Ms. Peri's father, the Testator's consent would have been required for her adoption (see ss. 13(1) and (2) of the Adoption Act). (I note that the legislation in effect in Washington and in British Columbia at the time of Ms. Peri's birth is not before the Court.)

29     But it is difficult to see how the Testator's presumptive status as Ms. Peri's father in relation to these enactments can avail Ms. Peri in her claim under the Act. This is particularly so in the light of the DNA evidence which effectively puts to rest any presumption of paternity on the part of the Testator by establishing, beyond question, that he was not Ms. Peri's biological father.

30     Counsel for Ms. Peri also relied on the fact that the Testator asserted the powers of a father when he (and Ms. Doman) took the significant step of placing Ms. Peri in a private fostering arrangement. In so doing, the Testator provided for her food, clothing, shelter, education, and other basic needs. It appears that he did so in a financially generous manner, which included providing for private schooling, for expenses while she attended college, and for the cost of her wedding.

31     From the limited evidence available, it also appears that the Testator provided a limited degree of moral support to Ms. Peri.

32     On the other hand, it is clear that the Testator never had any intention of acting as a father to Ms. Peri. Ms. Doman deposed that the Testator made it clear when he married her that he would help support her child, but that he would not raise Ms. Peri as his own child or consider her to be a member of the family. It appears that the Testator took control over the situation (presumably with Ms. Doman's agreement), by arranging for private foster care, providing the necessary financial support in that regard, and, ultimately, attempting to protect his estate and that of Ms. Doman from any claims by Ms. Peri.

33     The evidence indicates that he also made it clear to Ms. Peri from the time she first contacted him that he was not her father and had no intention of acting as her father. Rather, he was acting as the husband of her mother. He also made it clear to her that, as far as he was concerned, she was not a member of his family. While Ms. Peri may have hoped that his views would change in that regard, there is no evidence that this happened. Further, it cannot reasonably be said that the Testator stood in loco parentis to Ms. Peri. On the contrary, he went out of his way to maintain a physical and emotional distance from her while still seeing to many of her basic needs.

34     As earlier stated, Ms. Peri was unable to point to any jurisdiction in which her circumstances would give rise to a finding that she is a "child" entitled to claim under comparable dependants' relief legislation. Nor was she able to posit a definition of "child" or "children" which would capture her circumstances. Rather, she had recourse to some of the indicia of a parental relationship set out in Chartier v. Chartier, [1999] 1 S.C.R. 242. At para. 39 of that decision, Mr. Justice Bastarache, speaking for the court, stated:

  •      Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan, [1989] M.J. No. 557, was dependent on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent.

35     In my view, this passage is of little assistance in this analysis. It is written in the context of circumstances in which a person who was found to have stood in the place of a parent to a child at one point attempted to unilaterally withdraw from that role when his relationship with the child's mother broke down, in order to avoid paying child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd supp). The court emphasized the importance of examining the facts in relation to the relevant legislation in issue. Ultimately, the court held that it was not open to the respondent to withdraw from the obligations he assumed as a step-parent. Apart from the fact that the court was dealing in Chartier with the definition of a "child of the marriage" under the Divorce Act, the Testator in this case satisfies almost none of the criteria referred to in the passage quoted above, except for his provision of financial support.

36     In the absence of a more compelling case than has been presented, I do not find it necessary to grapple with the question of whether it should be left to the Legislature to expand the scope of who may claim as a "child" or "children" of a testator under the Act, or whether social, scientific and other circumstances have changed so significantly that it is appropriate for the Court to re-interpret those words. Thus, I find no basis for interfering with the decision of the chambers judge that Ms. Peri is not a child of the Testator within the meaning of s. 2 of the Act.