McNeil v. MacDougal, (1999) 256 A.R. 289 (SurCt)

• Judge: Dea, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 10, 1999
• Citations: (1999), 256 A.R. 289 (SurCt)

McNeil v. MacDougal (1999), 256 A.R. 289 (SurCt)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. DE.113

Harry McNeil (applicant) v. Kathy MacDougal a.k.a. Kathy McDougal (respondent) and Her Majesty the Queen in Right of Alberta (intervenor)

(Action No. 109944)

Indexed As: McNeil v. MacDougal

Alberta Surrogate Court

Judicial District of Edmonton

Dea, J.

December 10, 1999.

Summary:

The deceased died intestate. McNeil applied for administration of his deceased mother's estate, claiming as sole beneficiary. MacDougal filed a caveat, claiming entitle­ment to a share in the estate as the de facto adoptive daughter (no adoption order) of the deceased. McNeil applied to strike out Mac­Dougal's objections, asserting that they were frivolous and vexatious. MacDougal asserted that s. 65(1) of the Child Welfare Act infringed her equality rights (Charter, s. 15(1)) by failing to recognize de facto adop­tees in the same way that it recognized de jure adoptees.

The Alberta Surrogate Court struck out MacDougal's caveat and permitted McNeil's application for administration of his deceased mother's estate to continue.

Civil Rights - Topic 908

Discrimination - General principles - Nondiscriminatory laws - [See Civil Rights - Topic 918.1 and Family Law - Topic 6639 ].

Civil Rights - Topic 918.1

Discrimination - Family status - Common law adoption - The deceased died intestate - McNeil applied for administration of his deceased mother's estate, claiming as sole beneficiary - MacDougal filed a caveat, claiming entitlement to a share in the estate as the de facto adoptive daughter (no adoption order) of the deceased - McNeil applied to strike out MacDougal's objec­tions - At issue, inter alia, was whether s. 65(1) of the Child Welfare Act, which recognized only statutory adoptions, infringed MacDougal's equality rights (Charter, s. 15(1)) - The Alberta Surrogate Court upheld the constitutionality of s. 65(1) - The Act resulted in differential treatment between de facto and de jure adoptees - De facto adoptees were not afforded protection under an analogous ground because s. 65(1)'s purpose and effect did not violate human dignity - The Act did not actually discriminate against MacDougal - See paragraphs 38 to 77.

Family Law - Topic 1408

Adoption - General - Common law adop­tion - The deceased died intestate - McNeil applied for administration of his deceased mother's estate, claiming as sole benefici­ary - MacDougal filed a caveat, claiming entitlement to a share in the estate as the de facto adoptive daughter (no adop­tion order) of the deceased - McNeil applied to strike out MacDougal's objec­tions, assert­ing that they were frivolous and vexatious - At issue, inter alia, was whether common law adoptions existed - The Alberta Surro­gate Court held that outside of aboriginal custom adoptions, common law adoptions did not exist - See paragraphs 16 to 31.

Family Law - Topic 1408

Adoption - General - Common law adop­tion - The deceased died intestate - McNeil applied for administration of his deceased mother's estate, claiming as sole benefici­ary - MacDougal filed a caveat, claiming entitlement to a share in the estate as the de facto adoptive daughter (no adop­tion order) of the deceased - McNeil applied to strike out MacDougal's objec­tions, assert­ing that they were frivolous and vexatious - At issue, inter alia, was if common law adoptions existed, did the Child Welfare Act recognize common law adoptees such that its provisions permitted, according to ordinary statutory interpreta­tion, MacDou­gal to take under the Intestate Succession Act - The Alberta Surrogate Court held that common law adoptions did not exist outside of the aboriginal custom­ary adop­tions, therefore common law adoptions for non-aboriginals could not be recognized by the Child Welfare Act - See paragraph 31.

Family Law - Topic 1674

Adoption - Effect of adoption - On inheri­tance rights - [See both Family Law - Topic 1408 ].

Family Law - Topic 6639

Dependents' relief legislation - Persons entitled to relief - Child - Effect of adop­tion - The deceased died intestate - McNeil applied for administration of his deceased mother's estate, claiming as sole benefici­ary - MacDougal filed a caveat, claiming entitlement to a share in the estate as the de facto adoptive daughter (no adop­tion order) of the deceased - McNeil applied to strike out MacDougal's objec­tions, assert­ing that they were frivolous and vexatious - MacDougal claimed that s. 65(1) of the Child Welfare Act discrimi­nated against her and was unconstitutional (Charter, s. 15) - The Alberta Surrogate Court held that no common law adoption existed in Alberta in this context and s. 65(1) did not infringe s. 15(1) of the Char­ter - The court struck out MacDougal's caveat and per­mitted McNeil to proceed with his applica­tion for administration of the deceased's estate.

Cases Noticed:

Hunt v. T. & N. plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, 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. 18].

Esplin Estate, Re, [1946] 2 D.L.R. 404 (B.C.S.C.), refd to. [para. 21].

Davis, Re (1909), 18 O.L.R. 384 (H.C.), refd to. [para. 25].

Fidelity Trust Co. v. Buchner (1912), 5 D.L.R. 282 (Ont. H.C.), refd to. [para. 25].

Rice, Re (1957), 8 D.L.R.(2d) 775 (Ont. H.C.), refd to. [para. 28].

Naples v. Martin Estate, [1987] 1 W.W.R. 52 (B.C.S.C.), refd to. [para. 29].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 35].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693, refd to. [para. 46].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 50].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 51].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 306, refd to. [para. 51].

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 51].

Weatherall v. Canada (Attorney General) - see Conway v. Canada.

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 51].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 51].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 51].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358, refd to. [para. 51].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 51].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 51].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 32].

Child Welfare Act, S.A. 1984, c. C-8.1, sect. 65(1) [para. 10].

Authors and Works Noticed:

Alberta, Law Reform Institute, Final Report on Reform of the Intestate Suc­cession Act, Report No. 78 (June 1999), generally [para. 77].

Halsbury's Laws of England (1993) (4th Ed. - Reissue), vol. 5, p. 647, para. 1021 [para. 22]; p. 694, para. 1089, note 5 [para. 23].

Counsel:

Daniel N. Scott, for the applicant;

Alan Collins, for the respondent;

Jeffrey Morrison, for the intervenor.

This application was heard before Dea, J., of the Alberta Surrogate Court, Judicial District of Edmonton, who delivered the following judgment on December 10, 1999.