Henry v. Henry Estate et al., 2014 MBCA 84

• Judge: Beard, Monnin and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 27, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBCA 84;(2014), 310 Man.R.(2d) 1 (CA)

Henry v. Henry Estate (2014), 310 Man.R.(2d) 1 (CA);

      618 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. SE.029

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

(AI 14-30-08129; 2014 MBCA 84)

Indexed As: Henry v. Henry Estate et al.

Manitoba Court of Appeal

Beard, Monnin and Mainella, JJ.A.

May 27, 2014.

Summary:

The plaintiff claimed that she was the daughter of the late Rupert Henry, a citizen of the United Kingdom who died intestate in London, England in 1999. The plaintiff sought judgment in the amount of approximately $250,000 on the basis that, as his child, she was entitled to inherit on an intestacy. The parties agreed that the substantive laws of England would govern the establishment of paternity and the procedural laws of Manitoba would govern the procedural aspects of the claim. A motion judge was asked to decide the preliminary issue of whether ss. 20(6), 20(7) and 23 of the Family Maintenance Act (FMA) were substantive and therefore did not apply to establishing parentage, or were procedural and therefore did apply.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 302 Man.R.(2d) 36, determined that these provisions of the FMA were substantive and therefore would not apply to the Manitoba proceeding. The defendants appealed that finding.

The Manitoba Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 45

Application of foreign law - Exceptions - Procedure - The plaintiff claimed that she was the daughter of the late Rupert Henry, a citizen of the United Kingdom who died intestate in London, England in 1999 - The plaintiff sought judgment in the amount of approximately $250,000 on the basis that, as his child, she was entitled to inherit on an intestacy - The parties agreed that the substantive laws of England would govern the establishment of paternity and the procedural laws of Manitoba would govern the procedural aspects of the claim - A preliminary issue arose as to whether ss. 20(6), 20(7) and 23 of the Family Maintenance Act (FMA) were substantive and therefore did not apply to establishing parentage, or were procedural and therefore did apply - 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 motion judge determined that these provisions of the FMA were substantive and therefore would not apply to the Manitoba proceeding - The Manitoba Court of Appeal dismissed an appeal - The court agreed that ss. 20(6), 20(7) and 23 of the FMA were substantive in nature and therefore did not apply in the proceeding.

Conflict of Laws - Topic 2342

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

Infants - Topic 2503.2

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

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

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. 12].

Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553 (P.C.), refd to. [para. 12].

Hill v. Marion Estate (1998), 126 Man.R.(2d) 217; 167 W.A.C. 217 (C.A.), refd to. [para. 12].

Turner v. Irwin Estate (2003), 180 Man.R.(2d) 123; 310 W.A.C. 123; 2003 MBCA 146, refd to. [para. 12].

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(6), sect. 20(7), sect. 23 [para. 24].

Authors and Works Noticed:

Walker, Janet, Castel & Walker, Canadian Conflict of Laws (6th Ed. 2005), Looseleaf, vol. 1, paras. 6.2 [paras. 14, 27, 28, 33]; 6.3(c) [para. 30]; 6.3(d) [para. 29]; 6.3(h) [para. 31].

Counsel:

C.R. Huband and J.S. Michaels, for the appellants;

P.V. Walsh, Q.C., for the respondent.

This appeal was heard on May 27, 2014, before Beard, Monnin and Mainella, JJ.A., of the Manitoba Court of Appeal. The judgment of the Court of Appeal was pronounced on May 27, 2014, and written reasons were delivered on September 12, 2014, including the following opinions:

Monnin, J.A. (Mainella, J.A., concurring) - see paragraphs 1 to 5;

Beard, J.A. - see paragraphs 6 to 46.