Marshall Estate, Re, (2009) 275 N.S.R.(2d) 383 (CA)

• Judge: MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 17, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 275 N.S.R.(2d) 383 (CA);2009 NSCA 25

Marshall Estate, Re (2009), 275 N.S.R.(2d) 383 (CA);

    877 A.P.R. 383

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MR.030

Patricia Strong (appellant) v. The Estate of Gladys Goldie Marshall and The Attorney General of Nova Scotia (respondents)

(CA272017; 2009 NSCA 25)

Indexed As: Marshall Estate, Re

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A.

March 17, 2009.

Summary:

Marshall died intestate in 2000. She never married and died leaving a number of kindred (brothers, sisters, nephews and nieces). Marshall gave birth to a daughter in 1950. The daughter was adopted by strangers in 1952. At issue was whether the daughter's 1952 adoption terminated her right to inherit from her natural mother as a "lawful lineal descendant" under the Intestate Succession Act.

The Nova Scotia Supreme Court, in a judgment reported (2006), 247 N.S.R.(2d) 233; 785 A.P.R. 233, held that the adoption terminated the relationship between the daughter and her natural mother absolutely and for all purposes. The daughter subsequently challenged the statutory termination of the right to inherit (currently embodied in ss. 80 and 82 of the Children and Family Services Act) as violating her rights under s. 7 or s. 15 of the Charter.

The Nova Scotia Supreme Court, in a judgment reported (2008), 263 N.S.R.(2d) 347; 843 A.P.R. 347, dismissed the application. Although the daughter had standing to challenge the sections, the statutory termination of the right to inherit from a natural parent by virtue of an adoption did not violate s. 7 or s. 15 of the Charter. The daughter appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The right to inherit was terminated and did not violate s. 7 or s. 15 of the Charter.

Civil Rights - Topic 201

Life - General - [See Civil Rights - Topic 5659 ].

Civil Rights - Topic 1208

Security of the person - General - Adoption - [See Civil Rights - Topic 5659 ].

Civil Rights - Topic 5659

Equality and protection of the law - Particular cases - Adoption - Marshall died intestate in 2000 - She never married and died leaving a number of kindred (brothers, sisters, nephews and nieces) - Marshall gave birth to a daughter in 1950 - The daughter was adopted by strangers in 1952 - The daughter claimed as the sole "lawful lineal descendant" of her natural mother under the Intestate Succession Act - Since a 1967 amendment to the Adoption Act (now embodied in ss. 80 and 82 of the Children and Family Services Act), an adopted person's right to inherit from a natural parent was terminated - Until 1967, an adopted child could not inherit from an adoptive parent, but could still inherit from a natural parent - The trial judge rejected the daughter's submission that the statutory termination of the right to inherit violated her s. 7 Charter right to life and security of the person or her equality rights (s. 15) - The Nova Scotia Court of Appeal agreed, stating that "the 1967 amendment, reiterated in ss. 80(1)(a) and (b) and 82 of the CFSA, does not perpetuate a disadvantage, embody a prejudice or reflect a stereotype of adoptees. It does not promote the view that the adoptee is less worthy or less deserving of concern, respect and consideration. It is not discriminatory under s. 15(1) according to Kapp's synthesized approach and Law's contextual factors." - The court agreed that the daughter's s. 7 Charter rights were not denied - Although the daughter argued that the right to inherit was broader than just a property right, as it included the right to access medical and genetic information from natural parents ("informational rights"), the court noted that she made no application for such information under the Adoption Information Act - Even if the daughter was entitled to such broader informational rights under s. 7, "the remedy would not be a declaration that ss. 90(1)(a) and (b) and 82 of the CFSA are unconstitutional and that [the daughter] is 'issue' of Ms. Marshall under the Intestate Succession Act" - See paragraphs 7 to 49.

Civil Rights - Topic 5679.2

Equality and protection of the law - Particular cases - Devolution of estates - [See Civil Rights - Topic 5659 ].

Devolution of Estates - Topic 446

Devolution - General - Children - Effect of adoption - [See Civil Rights - Topic 5659 ].

Family Law - Topic 1674

Adoption - Effect of adoption - On inheritance rights - [See Civil Rights - Topic 5659 ].

Cases Noticed:

Huston v. Ash and Webster and Public Trustee of Manitoba, [1985] 2 W.W.R. 634; 15 D.L.R.(4th) 469 (Man. C.A.), refd to. [para. 19].

Mernickle v. Hartman Estate (1986), 1 B.C.L.R.(2d) 267; 25 D.L.R.(4th) 758 (C.A.), refd to. [para. 19].

Trombley Estate v. Rachow (1988), 67 O.R.(2d) 35 (H.C.), refd to. [para. 19].

Matthews Estate, Re (1992), 126 A.R. 287; 1 Alta. L.R.(3d) 198 (Q.B.), refd to. [para. 19].

Benefield et al. v. Hrenko Estate (2001), 287 A.R. 33; 2001 ABQB 242, refd to. [para. 19].

Hart v. Hart Estate (1993), 124 N.S.R.(2d) 333; 345 A.P.R. 333 (T.D.), disagreed with [para. 22].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 26].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 27].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 29].

Boulter et al. v. Nova Scotia Power Inc. et al. (2009), 275 N.S.R.(2d) 214; 877 A.P.R. 214; 2009 NSCA 17, refd to. [para. 29].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 31].

McNeil v. MacDougal (1999), 256 A.R. 289 (Surr. Ct.), refd to. [para. 33].

McCrea v. Barrett et al., [2004] B.C.T.C. 208 (S.C.), refd to. [para. 33].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 41].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 41].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 45].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 45].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 45].

Buckton, Re, [1907] 2 Ch. 406, refd to. [para. 51].

Smith v. Michelin North America (Canada) Inc. (2008), 271 N.S.R.(2d) 274; 867 A.P.R. 274; 2008 NSCA 107, refd to. [para. 51].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 67(1)(d), sect. 67(1)(e), sect. 78(1) [para. 14]; sect. 78A [para. 16]; sect. 80, sect. 82 [para. 14].

Intestate Succession Act, R.S.N.S. 1989, c. 236, sect. 2(b), sect. 4(7), sect. 16 [para. 17].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), para. 47.9 [para. 41].

Counsel:

G. Bernard Conway, for the appellant;

Bruce Gillis, Q.C., for the respondent Estate;

Alexander Cameron, for the respondent, Attorney General of Nova Scotia;

Eric Sturk, for the nieces and nephews of Ms. Marshall.

This appeal was heard on January 21-22, 2009, at Halifax, N.S., before MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On March 17, 2009, Fichaud, J.A., delivered the following judgment for the Court.