M.V. v. W.P.V. et al., 2003 MBQB 110

• Judge: Sinclair, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 15, 2003
• Jurisdiction: Manitoba
• Citations: 2003 MBQB 110;(2003), 175 Man.R.(2d) 192 (QB)

M.V. v. W.P.V. (2003), 175 Man.R.(2d) 192 (QB)

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. MY.029

M.V. (applicant) v. W.P.V., M.J.S., D.M.V. and W.B.K.V., as Executor of The Estate of L.V., Deceased (respondents)

(PR 99-01-50981; 2003 MBQB 110)

Indexed As: M.V. v. W.P.V. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Sinclair, J.

May 15, 2003.

Summary:

R. predeceased his mother. By operation of s. 25.2 of the Wills Act, his share of her estate passed to his children. R. had three children (the respondents) from his second marriage. Another child, M., had been born during his first marriage. The respondents alleged that R. had told them and others that he believed that M. was the child of an extra-marital affair and was not his. M. applied to have the testatrix's will construed so that he was entitled to be included in the distribution. The respondents opposed the application and requested an order that M. undergo DNA testing.

The Manitoba Court of Queen's Bench held that pursuant to s. 23 of the Family Maintenance Act, R. was presumptively the father of M. The court also held that while it had the discretion to order M. to undergo a DNA test pursuant to s. 63 of the Queen's Bench Act and the court's inherent jurisdiction, it would not make such an order in this case. Pursuant to s. 20(7) of the Family Maintenance Act, M. was declared to be R.'s child and he was entitled to participate in the distribution of the estate.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See Infants - Topic 2520 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See first Evidence - Topic 1628 ].

Evidence - Topic 1628

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - Declarations as to pedigree - R. predeceased his mother - By operation of s. 25.2 of the Wills Act, his share of her estate passed to his children - R. had three children (the respondents) from his second marriage - Another child, M., had been born during his first marriage - At issue was whether M. was a child of R. entitled to share in the distribution of the estate - The Manitoba Court of Queen's Bench held that hearsay statements allegedly made by R. to the respondents and others that he believed that M. was not his son and was the child of an extra-marital affair were not admissible where: (1) the statements were a repetition of statements made by R. during divorce litigation between himself and M.'s mother; (2) R.'s statements were nothing more than his opinion as he never determined if he was in fact M.'s father; and (3) such statements had been ruled inadmissible where the result of permitting the statement would be to create an illegitimacy - While there was necessity to admit the hearsay evidence, the statements lacked the threshold level of reliability - See paragraphs 26 to 40.

Evidence - Topic 1628

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - Declarations as to pedigree - The Manitoba Court of Queen's Bench stated that "Declarations as to pedigree and family history are an exception to the hearsay rule ... This exception has been the basis for admitting statements made by parties with knowledge of the facts as to paternity. The reliability of the statement is assured if the statement is made ante litem motam (at a time anterior to the commencement of any actual controversy upon the point in issue). It would seem that, where there is litigation contemplated or pending on the point, such statements are not admitted as being statements possibly intended to advance the interests of one party or the other to the controversy" - See paragraphs 28 to 29.

Infants - Topic 2503.1

Parentage of children - Determination of parentage - Evidence - R. predeceased his mother - By operation of s. 25.2 of the Wills Act, his share of her estate passed to his children - R. had three children from his second marriage - Another child, M., had been born during his first marriage - At issue was whether M. was a child of R. entitled to share in the distribution of the estate - The Manitoba Court of Queen's Bench placed no weight on R.'s statement in the petition for divorce from M.'s mother that there were no issue of that marriage - The statement was probably not correct as a child born during the term of the marriage was a child for the purposes of the relevant legislation - Further, there was no basis for R.'s view that he was not M.'s father and the lack of response by M.'s mother to the petition had no probative value - The fact that R. took no financial or other responsibility for M. after his divorce from M.'s mother also could not be evidence of his lack of paternity - See paragraphs 41 to 44.

Infants - Topic 2503.1

Parentage of children - Determination of parentage - Evidence - R. predeceased his mother - By operation of s. 25.2 of the Wills Act, his share of her estate passed to his children - R. had three children (the respondents) from his second marriage - Another child, M., had been born during his first marriage - At issue was whether M. was a child of R. entitled to share in the distribution of the estate - The Manitoba Court of Queen's Bench held that the lack of provision in R.'s will for M., and R.'s identification of the respondent children as "my children" in his will, was equivocal and was not evidence of an intention to exclude M. - See paragraphs 47 to 48.

Infants - Topic 2520

Parentage of children - Filiation proceedings - Evidence (incl. blood, tissue and DNA tests) - R. predeceased his mother - By operation of s. 25.2 of the Wills Act, his share of her estate passed to his children - R. had three children (the respondents) from his second marriage - Another child, M., had been born during his first marriage - The respondents alleged that R. had told them and others that he believed that M. was not his and was the child of an extra-marital affair - The respondents requested an order that M. undergo DNA testing - The Manitoba Court of Queen's Bench held while it had jurisdiction to order DNA testing pursuant to s. 63 of the Queen's Bench Act, as well as pursuant to its inherent jurisdiction, it would not make such an order in this case where: the intent was to disinherit someone who otherwise had a vested right to a share of an estate; the application was brought primarily on behalf of the other beneficiaries who had a vested interest; and there was no admissible evidence undermining M.'s status as R.'s child - The court was not prepared to draw an adverse inference against M. for refusing to undergo DNA testing - See paragraphs 55 to 66.

Cases Noticed:

F.A.L. v. A.B.B. (1995), 102 Man.R.(2d) 251; 93 W.A.C. 251 (C.A.), consd. [para. 19].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590, refd to. [para. 26].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 26].

R. v. Duff (G.A.) (1994), 95 Man.R.(2d) 167; 70 W.A.C. 167 (C.A.), refd to. [para. 27].

Anderson v. Walden, [1960] O.R. 50; 21 D.L.R.(2d) 279 (C.A.), refd to. [para. 35].

Best v. Revere (Paul) Life Insurance Co. (2000), 150 Man.R.(2d) 105; 230 W.A.C. 105 (C.A.), refd to. [para. 57].

Authors and Works Noticed:

Sopinka, John, Lederman, Sydney N., and Bryant, Alan, W., The Law of Evidence in Canada (2nd Ed. 1999), §6.191 [para. 28].

Counsel:

Darrell A. Kreel, for the applicant;

Garry R. Micflikier, for the respondents, W.P.V., M.J.S. and D.M.V.;

David G. Vincent, for the respondent, W.B.K.V.

These applications were heard before Sinclair, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on May 15, 2003.