Corrigan Estate, Re, (2013) 289 Man.R.(2d) 291 (QB)

• Judge: Menzies, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 27, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 289 Man.R.(2d) 291 (QB);2013 MBQB 77

Corrigan Estate, Re (2013), 289 Man.R.(2d) 291 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. AP.022

Gordon Alexander Cudney, as Administrator of the Estate of Samuel Walter Corrigan (applicant) v. Elwood Episkenew, Sandra Woods, Phoenix R. Eastwood, Charlene Barbara Woods, Georgette Rose Woods, Michael George Woods and The Government of Manitoba (respondents)

(PR 09-01-83566; 2013 MBQB 77)

Indexed As: Corrigan Estate, Re

Manitoba Court of Queen's Bench

Winnipeg Centre

Menzies, J.

March 27, 2013.

Summary:

The administrator of Samuel Corrigan's estate applied for directions. In his will, Samuel, a Caucasian, left 50% of his estate to his brother Richard, and 50% to "his son" Elwood, whom Samuel adopted by way of an aboriginal customary adoption. Richard predeceased Samuel and left no issue. The will did not provide for disposition should either of the beneficiaries predecease Samuel. Pursuant to the Intestate Succession Act, the 50% gifted to Richard would be shared among any descendants of Samuel. Two claims were advanced, both founded on aboriginal custom adoption. If there were no descendants of Samuel, then the monies would be transferred to the Province.

The Manitoba Court of Queen's Bench directed that neither of the claimants were able to claim on the estate as Samuel's legal children. Accordingly, the portion of the estate gifted to Richard passed to the Province of Manitoba.

Family Law - Topic 1409

Adoption - Native custom adoptions - The Manitoba Court of Queen's Bench did not extend the right of an aboriginal custom adoption to a situation where the only adoptive parent was Caucasian - "If customary adoptions involving non-aboriginal parents are to be recognized, the onus to prove that the Caucasian parent is entitled to rely on the aboriginal custom must be onerous. Any evidence of acceptance of aboriginal custom and culture as the adoptive parent's own must be clear and convincing." - See paragraph 36.

Family Law - Topic 1409

Adoption - Native custom adoptions - The deceased (Samuel), a Caucasian, had adopted a son (Elwood) in 1969 by way of an aboriginal customary adoption - Elwood's grandfather was present at the adoption to indicate his consent (Elwood's parents were deceased); the placement was voluntary; and the relationship created by the aboriginal customary adoption was fundamentally the same as an adoption under the Adoption Act - The Manitoba Court of Queen's Bench found that, in the absence of clear or convincing evidence that Samuel lived in accordance with or followed aboriginal custom, Samuel was not entitled to rely on aboriginal custom adoption - In the result, the court could not find that Elwood was the adopted son of Samuel for the purposes of the Intestacy Succession Act - See paragraphs 37 and 38.

Family Law - Topic 1674

Adoption - Effect of adoption - On inheritance rights - [See second Family Law - Topic 1409 ].

Indians, Inuit and Métis - Topic 6031

Particular aboriginal or treaty rights - Respecting children - [See first Family Law - Topic 1409 ].

Cases Noticed:

Katie, Re (1961), 32 D.L.R.(2d) 686 (N.W.T. Terr. Ct.), refd to. [para. 14].

Beaulieu, Re (1969), 3 D.L.R.(3d) 479 (N.W.T. Terr. Ct.), refd to. [para. 14].

Deborah E4-789, Re (1972), 27 D.L.R.(3d) 225 (N.W.T.S.C.), affd. 28 D.L.R.(3d) 483 (N.W.T.C.A.), refd to. [para. 14].

Wah-Shee, Re (1975), 57 D.L.R.(3d) 743 (N.W.T.S.C.), refd to. [para. 14].

Tagornak, Re, [1984] 1 C.N.L.R. 185; 50 A.R. 237 (N.W.T.S.C.), refd to. [paras. 14, 24].

McNeil v. MacDougal, [2000] 2 W.W.R. 729; 256 A.R. 289 (Sur. Ct.), refd to. [para. 14].

Manychief et al. v. Poffenroth, [1995] 3 W.W.R. 210; 164 A.R. 161 (Q.B.), refd to. [para. 14].

B.C. Birth Registration No. 1994-09-040399, Re, [1998] B.C.T.C. Uned. 802; 45 R.F.L.(4th) 458 (S.C.), refd to. [para. 14].

Prince et al. v. Duncan Estate et al., [2000] B.C.T.C. 506; [2000] 4 C.N.L.R. 249 (S.C.), refd to. [para. 14].

Casimel et al. v. Insurance Corp. of British Columbia (1993), 30 B.C.A.C. 279; 49 W.A.C. 279; 106 D.L.R.(4th) 720 (C.A.), refd to. [para. 14].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 19].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289; 9 W.W.R. 1; 4 C.N.L.R. 177, refd to. [para. 33].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 48(16) [para. 16].

Counsel:

Alex Cudney, Connor Williamson and Debra Takeuchi, for the applicant;

David Bowman, for Elwood Episkenew;

Leslie Turner, for the Government of Manitoba;

Janet Sigurdson, for the Director of Child and Family Services (watching brief).

This application was heard before Menzies, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment, dated March 27, 2013.