Tighe v. McGillivray Estate et al., (1994) 127 N.S.R.(2d) 313 (CA)

• Judge: Jones, Matthews and Chipman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 09, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 127 N.S.R.(2d) 313 (CA)

Tighe v. McGillivray Estate (1994), 127 N.S.R.(2d) 313 (CA);

  355 A.P.R. 313

MLB headnote and full text

Matthew Peter Tighe, an infant by mother and guardian ad litem, Emily Madonna Tighe (appellant) v. The Estate of Thomas Daniel McGillivray and Lucia Elizabeth McGillivray, both as administratrix of said estate and in her own right (respondent)

(C.A. No. 02944)

Indexed As: Tighe v. McGillivray Estate et al.

Nova Scotia Court of Appeal

Jones, Matthews and Chipman, JJ.A.

February 9, 1994.

Summary:

An illegitimate child claimed as an heir to his natural father's estate. The result of ss. 2(b), 4(7) and 16 of the Intestate Succession Act was that an illegitimate child could inherit from its natural mother, but not its natural father. The child claimed the Act violated equality rights under s. 15 of the Charter of Rights and Freedoms.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, dismissed the application. The child appealed.

The Nova Scotia Court of Appeal held that the provisions violated s. 15 of the Charter and were not reasonable limits prescribed by law under s. 1. The court stated that the appropriate remedy under s. 24(1) was to read into s. 16 the words "or father", thereby entitling illegitimate children to claim as heirs to their natural father's estate.

Civil Rights - Topic 5679.2

Equality and protection of the law - Dev­olution of estates - The result of ss. 2(b), 4(7) and 16 of the Intestate Succession Act was that illegitimate children could inherit from the natural mother, but not the natu­ral father - The Nova Scotia Court of Appeal held that the Act violated the s. 15 Charter equality rights of illegitimate children and was not a reasonable limit prescribed by law under s. 1 - Illegitimate children were denied equal benefits on the basis of personal characteristics associated with the group to which they belonged - The unfair distinction constituted discrimi­nation - The court stated that the appro­priate remedy was to read into s. 16 the words "or father", thereby entitling illegit­imate children to claim as heirs to their natural father's estate.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 5679.2 ].

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of right - Remedies - Conferring of right - Reading in - [See Civil Rights - Topic 5679.2 ].

Devolution of Estates - Topic 445

Devolution - Children - Illegitimate children - [See Civil Rights - Topic 5679.2 ].

Cases Noticed:

Surette et al. v. Harris Estate (1984), 91 N.S.R.(2d) 418; 233 A.P.R. 418 (T.D.), refd to. [para. 7].

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. 8].

C.E.P. v. G.V. (1993), 108 Sask.R. 183; 101 D.L.R.(4th) 726 (Q.B.), refd to. [para. 12].

Phillips v. Social Assistance Appeal Board (N.S.) (1986), 76 N.S.R.(2d) 240; 189 A.P.R. 240 (C.A.), refd to. [para. 19].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 19].

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 14 C.R.R. 13; 12 Admin. L.R. 137; 17 D.L.R.(4th) 422, refd to. [para. 19].

Schachter v. Canada et al. (1992), 139 N.R. 1; 93 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 20].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 15 [para. 6]; sect. 24(1) [para. 15].

Constitution Act, 1982, sect. 52(1) [para. 16].

Constitutional Questions Act, R.S.N.S. 1989, c. 89, sect. 10 [para. 4].

Intestate Succession Act, R.S.N.S. 1989, c. 236, sect. 2(b), sect. 4(7), sect. 16 [para. 5].

Counsel:

M. Joseph Rizzetto, for the appellant;

Neil F. McMahon, for the respondent;

Marian F.H. Tyson, for the Attorney Gen­eral of Nova Scotia.

This appeal was heard on January 24, 1994, before Jones, Matthews and Chipman, JJ.A., of the Nova Scotia Court of Appeal.

On February 9, 1994, Chipman, J.A., delivered the following judgment for the Court of Appeal.