Adopted Children Cannot Vary the Wills of their Biological Parents - WESA confirmed

Boer v. Mikaloff Estate, 2017 BCSC 21

The Plaintiff was born to the testatrix, Mrs. Mikaloff, but was subsequently legally adopted when he was ~1 year old by a couple unrelated to his birth mother.  Years later, in 1996, the Plaintiff was reunited with his birth mother and they enjoyed a loving relationship.  In his birth mother’s will, the Plaintiff was to be left with a portion of her estate.  Mrs. Mikaloff died April 22, 2015 and the Plaintiff brought an action seeking variation of the will pursuant to s. 60 of WESA.  In response, the Executor of the estate brought an application to dismiss the Plaintiff’s claim. 

The relevant issue was whether a child who is adopted by other parents after birth, but who is named as beneficiary under the birth parent’s will, has standing to seek relief under s. 60 of WESA. 

HELD:  Application granted and the claim of the plaintiff was dismissed.

The court found that, unless an exception applied, the effect of s. 37(5) of the Adoption Act was that the Plaintiff had become a child of his adoptive parents and thus, was no longer a child of the testatrix, his birth mother.  This meant he did not have standing to seek relief under s. 60 of WESA.

WESA, at s. 3(2)(a), confirmed that an adopted child is not within the family relationships of his or her birth parents, for the purposes of WESA.  The adopted child, under s. 3(2)(a), is not entitled to the estate of his or her own pre-adoption parent.  The only exception to be found is in s. 3(3) of WESA, which provides the adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of the parent and child between the child and the pre-adoption parent for purposes of succession.  The relevant section of WESA, s. 60, did not distinguish between individuals related by birth and those related by adoption.  Although the Plaintiff was named as a beneficiary under the will, the Plaintiff’s family relationship to his birth mother, for wills variation purposes, was determined under s. 37(1) and (5) of the Adoption Act and the Plaintiff had become a child of the adoptive parents. 

ANALYSIS

[17]         Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

[18]         A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

[19]         A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

[20]         WESA does not define “child” or “children”.

[21]         Subsection 37(1) of the Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

[22]         Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435, addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

[23]         Justice Esson (as he then was), stated:

[6] … 
It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.

[24]         Justice Donald and Justice Saunders concurred in the disposition of the appeal and agreed with Esson J.A.’s interpretation of the Adoption Act. Justice Donald shared Saunder J.A.’s reservation in her concurring reasons as to the concern Esson J.A. expressed regarding “the consequences that would flow from granting to adoption children a right of succession against their birth parents”.

[25]         In the case at bar, unless an exception applies, the effect of s. 37(5) of the Adoption Act is that the plaintiff, upon adoption, became the child of his adoptive parents and his adoptive parents became his parents. The plaintiff was no longer a child of his birth mother, the late Ms. Mikaloff. Such would be the “family relationships” as determined by s. 37 of the Adoption Act.

[26]         Section 3(2)(a) of WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA. Section 3(2)(a) provides that an adopted child “is not entitled to the estate of his or her own pre-adoption parent except through the will of the pre-adoption parent”. In other words, an adopted child relative to a pre-adoption parent will-maker is in the same position as a non-family member. The only exception is found in s. 3(3) of WESA which provides that the adoption of “a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession…”. (my emphasis)

[27]         Plaintiff’s counsel argues that the case at bar falls within the exception to the general rule that family relationships of one person to another are determined in accordance with s. 37 of the Adoption Act. The language of s. 37(5) of the Adoption Act which I have underlined below is the language plaintiff’s counsel emphasized:

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

[28]         Plaintiff’s counsel argues that WESA is another enactment and that s. 3 of WESA distinguishes between persons related by birth and persons related by adoption. Accordingly, he argues that the plaintiff should be viewed as one of the late Ms. Mikaloff’s children under s. 60 of WESA.

[29]         With respect, I cannot accede to plaintiff’s counsel’s argument that the case at bar falls within the exception. As noted, “enactment” is defined in the Interpretation Act to mean “an Act or a regulation or a portion of an Act or regulation”.

[30]         The language of s. 37(5) of the Adoption Act, “unless this or another enactment” does not refer to WESA generally. If it were to do so, the reliance of s. 3(1) of WESA on the Adoption Act for the determination at any generation of the relationship of parent and child arising from adoption would be defeated.

[31]         In context, “another enactment” does not refer to WESA generally. In other situations, “another enactment” may refer to sections or other portions of WESA.

[32]         Section 60 of WESA, the wills variation provision, does not “[distinguish] between persons related by birth and persons related by adoption”. Accordingly, the plaintiff’s family relationship to the late Ms. Mikaloff for the purpose of wills variation is determined under s. 37(1) and (5) of the Adoption Act. The plaintiff under these rules became the child of his adoptive parents. The fact that the plaintiff was named beneficiary under the will does not change the analysis.

[33]         The result is that an adopted child does not have standing to bring a wills variation claim against his or her pre-adoption parent’s estate (except an adopted child falling within s. 3(3) of the Adoption Act). The result is harmonious with WESA’s provisions regarding the entitlement of adopted children on the intestacy of a pre-adoption parent. Under WESA, an adopted child of a pre-adoption parent has no entitlement to the estate of his or her pre-adoption parent who dies intestate, unless adopted by the spouse of a pre-adoption parent: ss. 3(2)(a) and 3(3) of WESA.

[34]         Plaintiff’s counsel also argues that s. 3(2)(a) of WESA contemplates an adopted child taking “through the will of a pre-adoption parent” and that this language is ambiguous. He says that the phrase is not specifically limited by words he suggests the Legislature could have added such as “and only to the extent provided under the will” if its intent was as argued by the applicant.

[35]         With respect, s. 3(2)(a) is clear. The language “except through the will of the pre-adoption parent” represents the exception to the more general language that an adopted child “is not entitled to the estate of his or her pre-adoption parent”. Without the exception, an adopted child would be barred from claiming against his or her pre-adoption parent’s estate even where the pre-adoption parent had made provision in his or her will for his or her natural child.

[36]         Section 3(2)(a) places an adopted child with respect to his or her pre-adoption parents who makes a will in the same position as, say, a close and loving friend of the will-maker for whom the will-maker provides in his or her will. The “through the will” exception in s. 3(2)(a) does not allow an adopted child to bootstrap a bequest by the child’s pre-adoption parent in his or her will to the child into a s. 60 WESA wills variation claim. The text, context and purpose are clear: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10.