Henry v. Henry Estate et al., (2014) 302 Man.R.(2d) 36 (QB)

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 09, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 302 Man.R.(2d) 36 (QB);2014 MBQB 10

Henry v. Henry Estate (2014), 302 Man.R.(2d) 36 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.034

Melvina Grace Henry (plaintiff) v. Lenworth Henry and Pearlitia Wafer, as Executors of the Estate of the late Adelaide Henry, deceased and Joseph Henry (defendants)

(CI 12-01-77237; 2014 MBQB 10)

Indexed As: Henry v. Henry Estate et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

January 9, 2014.

Summary:

Rupert Henry died intestate in the United Kingdom. The plaintiff alleged that she was Rupert's child and sought judgment in the amount of approximately $250,000 (the total value of his estate) on the basis that, as his child, she was entitled to inherit on an intestacy. The court was directed by a consent order to decide the preliminary issues of jurisdiction and applicable law.

The Manitoba Court of Queen's Bench held that it had jurisdiction over the action. The court also held that ss. 20(6) and 20(7) of the Family Maintenance Act, together with s. 23, were inapplicable in the proceeding.

Conflict of Laws - Topic 45

Application of foreign law - Exceptions - Procedure - Rupert Henry died intestate in the United Kingdom (UK) - The plaintiff alleged that she was Rupert's child and sought judgment in the amount of approximately $250,000 (the total value of his estate) on the basis that, as his child, she was entitled to inherit on an intestacy - The parties disagreed as to whether ss. 20(6) and 20(7) of the Family Maintenance Act, together with s. 23, applied to this proceeding - Those sections prescribed that, where an alleged father was deceased, a living applicant could obtain a declaration of parentage only if she established that circumstances existed which gave rise to a presumption of paternity under s. 23 - The Manitoba Court of Queen's Bench stated that "counsel agree that the substantive law of the UK with respect to parentage applies; they also agree that should the action proceed in Manitoba, the procedural laws of this forum will apply ... So, this raises the issue as to whether the sections are procedural or substantive" - The court concluded that "if the plaintiff is unable to come within the presumptions prescribed by s. 23, she will be barred from establishing parentage, despite evidence that is apparently available about her mother's relationship with Rupert. These sections are not simply procedural rules that will make the machinery of this court run smoothly. They are substantive and thus inapplicable" - See paragraphs 30 to 45.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - [See Infants - Topic 2516 ].

Conflict of Laws - Topic 2342

Family law - Legitimacy - Choice of law - [See Conflict of Laws - Topic 45 ].

Conflict of Laws - Topic 2343

Family law - Legitimacy and paternity - Jurisdiction - [See Infants - Topic 2516 ].

Infants - Topic 2503.2

Parentage of children - General - Determination of parentage - Presumption of paternity - [See Conflict of Laws - Topic 45 ].

Infants - Topic 2516

Parentage of children - Filiation proceedings - Jurisdiction - Rupert Henry died intestate in the United Kingdom (UK) in 1999 - The plaintiff alleged that she was Rupert's child and sought judgment in the amount of approximately $250,000 (the total value of his estate) on the basis that, as his child, she was entitled to inherit on an intestacy - Rupert's mother (Adelaide) died in 2006 - Adelaide's estate would inherit Rupert's assets if the plaintiff could not prove that Rupert was her father - Issues of jurisdiction arose because Rupert, the plaintiff and her mother, were all residents of the UK - Adelaide resided in Jamaica and her will was probated there - The apparent reason for the action having been brought in Manitoba was that the funds which comprised the only asset of Rupert's estate had been deposited into an account in Manitoba - The funds were now being held in trust by counsel for Adelaide's estate - The Manitoba Court of Queen's Bench held that counsel's agreement that the assets of Rupert's estate be held in trust pending either settlement or a determination of the issues in this action by the Court of Queen's Bench of Manitoba clearly constituted an agreement that this court had jurisdiction over the action - Further, there had been consent by attornment - Adelaide's estate filed a statement of defence without raising any issue of jurisdiction and also brought a motion for security for costs - Although the court did not have to address the issue of real and substantial connection given its findings on consent and attornment, it stated that "there are connections to this province and issues of fairness that provide some support for the position that the court should assume jurisdiction on the basis of a real and substantial connection" - See paragraphs 12 to 29.

Cases Noticed:

Henry Estate v. Henry (2010), 261 Man.R.(2d) 26; 2010 MBQB 267, affd. (2012), 275 Man.R.(2d) 90; 538 W.A.C. 90; 2012 MBCA 4, refd to. [para. 6].

Shekhdar v. K&M Engineering and Consulting Corp. et al., [2006] O.A.C. Uned. 273; 148 A.C.W.S.(3d) 568 (C.A.), refd to. [para. 12].

Litecubes et al. v. Northern Light Products Inc., [2009] B.C.T.C. Uned. 181; 2009 BCSC 181, refd to. [para. 16].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 2010 ONCA 84, refd to. [para. 19].

Wildwood Transport Inc. et al. v. Eagle West Cranes Inc. et al. (2011), 263 Man.R.(2d) 195; 2011 MBQB 42, refd to. [para. 19].

Nandwani v. Nandwani et al. (2011), 271 Man.R.(2d) 57; 2011 MBQB 231, revd. (2013), 288 Man.R.(2d) 228; 564 W.A.C. 228; 2013 MBCA 12, refd to. [para. 22].

Hill v. Marion Estate (1998), 126 Man.R.(2d) 217; 167 W.A.C. 217 (C.A.), leave to appeal denied (1999), 236 N.R. 182 (S.C.C.), consd. [para. 31].

Turner v. Irwin Estate (2003), 180 Man.R.(2d) 123; 310 W.A.C. 123; 2003 MBCA 146, consd. [para. 31].

Kostick v. Gilligan - see Poldmae Estate, Re.

Poldmae Estate, Re (2001), 155 Man.R.(2d) 142; 2001 MBQB 109, refd to. [para. 33].

Hickey Estate v. Mitchell (2003), 226 Nfld. & P.E.I.R. 118; 673 A.P.R. 118; 2003 NLCA 27, refd to. [para. 33].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 37].

Barrick Gold Corporation v. Goldcorp Inc., 2011 ONSC 3725, refd to. [para. 37].

Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553 (P.C.), refd to. [para. 39].

Statutes Noticed:

Family Maintenance Act, R.S.M. 1987, c. F-20; C.C.S.M., c. F-20, sect. 17, sect. 20(1), sect. 20(3), sect. 20(4), sect. 20(6), sect. 20(7), sect. 22(1), sect. 23 [para. 7]; sect. 27, sect. 32 [para. 8].

Authors and Works Noticed:

Walker, Janet, Castel & Walker, Canadian Conflict of Laws (6th Ed. 2005), Looseleaf, vol. 1, §6.2, p. 6-1 [para. 35]; §6.2, p. 6-2 [paras. 35, 44]; §6.3, p. 6-5 [para. 36]; §11.1, p. 11-2 [para. 12]; §11.2, p. 11-4 [para. 16]; §20.1, p. 20-1 [para. 25]; §20.3, pp. 20-5 to 20-6 [para. 21].

Counsel:

Paul V. Walsh, Q.C., for the plaintiff;

Charles R. Huband and John S. Michaels, for the defendants, Lenworth Henry and Pearlitia Wafer.

This matter was heard before Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 9, 2014.