COURT FILE NO.: 2576/16 DATE: 2017-05-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HENRY KOZIARSKI, as Estate Trustee of the ESTATE OF JADWIGA KOZIARSKI Applicant – and – JESSE SULLIVAN Respondent
COUNSEL: Jasmine Sweatman, for the Applicant Rochelle F. Cantor, for the Respondent
HEARD: April 3, 2017
gray J.
[1] In 1824 Burrough J. said the following about public policy: “it is a very unruly horse, and when once you get astride it you never know where it will carry you”: see Richardson v. Mellish (1824), 2 Bing. 229, at p.252; 130 E.R. 294, at p.303.
[2] The dictum of Burrough J. is just as valid today as it was in 1824. That is not to say that judges do not make policy choices – they must make policy choices all the time. However, those policy choices are constrained by decisions of higher courts and, most importantly, by policy choices made by the legislature.
[3] In this case, what is raised is the entitlement of a child born out of wedlock to share in an estate. On one level, the policy choice would appear to be obvious – a child born out of wedlock is just as much the child of his or her parents as a child born to married parents. There should be no reason in principle why such a child should be treated differently. However, in this case the court is confronted with a policy choice that appears to have been made by the legislature that is contrary to the intuitive result.
[4] With a good deal of regret, I hold that in this case the respondent, who was a child born out of wedlock, is not entitled to share in the estate of his grandmother.
Background
[5] The applicant (“Henry”) is the surviving estate trustee of the estate of the late Jadwiga Koziarski (“Jadwiga”). He brings this application for the advice and direction of the court.
[6] The respondent, Jesse Sullivan (“Jesse”), is the grandson of Jadwiga. Jadwiga died on February 15, 2016 in Burlington. She was 94 years of age.
[7] Jadwiga made a will dated December 14, 1977. She was married at the time to Stefan Koziarski.
[8] Stefan and Jadwiga had two sons, George and Henry. George predeceased Jadwiga. He died on May 13, 2013.
[9] George married Carina Betts on October 22, 1991. They had one child, Nicole Karski, born July 11, 1997 in Palm Beach, Florida.
[10] Prior to the marriage of George and Carina, George had a relationship with Dianne Sullivan (the duration is in dispute), and they had a son, Jesse, who was born on May 29, 1988. While the applicant does not acknowledge that Jesse is the son of George, I am satisfied, based on the affidavit material filed by Jesse, including a Statement of Live Birth, that Jesse was, indeed, George’s son.
[11] Henry has two children, Steven and Robert, born in 1985 and 1988.
[12] In Jadwiga’s will, made December 14, 1977, she left everything to her husband Stefan, and if Stefan predeceased her she appointed George and Henry as her executors. After providing for the payment of debts, funeral and testamentary expenses, the will contains the following provision regarding the distribution of the residue:
3(c) To divide the remainder of my estate equally among such of my children as shall be living at the time of my death; provided that if any of my children shall predecease me, leaving issue him or her surviving, such issue shall take in equal shares per stirpes the share that such deceased child would have taken if living.
[13] As noted, George predeceased Jadwiga, and had one child, Nicole, who was born while he and Carina were married. He had another child, Jesse, who was born out of wedlock. Thus, the issue is whether Jesse falls within the term “issue” of George, such that he would receive an equal portion of George’s share of Jadwiga’s estate, or whether Nicole will receive the entirety of George’s share.
[14] There is conflicting evidence as to the relationship of Jesse and Jadwiga while Jadwiga was alive. It appears to be undisputed that once George and Carina were married, George attempted to have as little to do with Jesse as possible. However, there is some evidence that Jadwiga and Stefan recognized Jesse as their grandson, and attempted to maintain some sort of relationship with him. Indeed, it would appear that they set up an RESP for Jesse in June, 1989. Photographs have been filed that purport to show Jesse and Jadwiga together, and Jesse and George together.
[15] Nicole has not appeared on this application, and takes no position as to whether Jesse is entitled to any share in Jadwiga’s estate.
[16] Henry, as a beneficiary and the surviving estate trustee, will not be affected by the result of the application. He will receive one half of the estate in any case. However, in his factum, Henry has taken the position that Jesse is not entitled to share in the estate.
Submissions
[17] Henry submits that the question to be determined is what is meant by the use of the term “issue” in Jadwiga’s will, which was made in December, 1977.
[18] Henry points out that when Jadwiga’s will was made in 1977, she had two children and no grandchildren. Henry’s children were born in 1985 and 1988. George had two children, Jesse, born out of wedlock in 1988, and Nicole, born while George was married, in 1997.
[19] Henry’s counsel points out that it is always open to a testator to make it clear as to what persons or class of persons are to benefit under his or her will. Specifically, it is open to the testator to specify whether children or grandchildren born out of wedlock are to benefit.
[20] The difficulty arises where neutral terms such “child”, “children”, “grandchild”, “grandchildren”, or “issue” are used. Where such words are used, it is necessary to try to discern the testator’s intention as to whether persons born out of wedlock are to benefit.
[21] Henry’s counsel submits that in both England and in Canada, for many years, there was a presumption that words such as “child” and “issue” did not include persons born out of wedlock. That presumption could be rebutted by surrounding circumstances. For example, if the testator used the word “child” in his or her will when it was clear that at the time the testator only had a child or children born out of wedlock, it would not be difficult to conclude that the testator intended that his or her children born out of wedlock were to benefit. However, unless the surrounding circumstances dictated otherwise, the starting presumption would govern.
[22] Henry points out that the presumption was changed in 1978 in Ontario, by the enactment of what is now section 1(3) of the Succession Law Reform Act, which reads as follows:
- (3) In this Act, and in any will unless a contrary intention is shown in the will, a reference to a person in terms of a relationship to another person determined by blood or marriage shall be deemed to include a person who comes within the description despite the fact that he or she or any other person through whom the relationship is traced was born outside marriage.
[23] However, of significance here, s.1(3) was expressly made subject to s.1(4), which provides as follows:
- (4) Subsection (3) applies in respect of wills made on or after the 31st day of March, 1978.
[24] Henry submits that the combined effect of these two provisions is clear. The legislature expressly intended to change the presumption that the use of the word “child”, or similar terminology in a will, would not include a person born out of wedlock. However, it was also clearly the intention of the legislature that the change in the presumption was to be effective only with respect to wills made on or after March 31, 1978.
[25] In this case, Jadwiga’s will was made on December 14, 1977. The presumption, therefore, is that the use of the term “issue” in her will was not to include persons born out of wedlock. There was nothing in the surrounding circumstances in December, 1977, that would displace the presumption.
[26] Henry submits that the relationship of Jadwiga and Jesse after Jesse was born is not relevant. Thus, the extrinsic evidence as to the situation at that time is not relevant. The only surrounding circumstances that would be relevant would be surrounding circumstances existing at the time the will was made in December, 1977. As noted, there is nothing in those surrounding circumstances that would displace the presumption that the word “issue” did not include persons born out of wedlock.
[27] For these reasons, counsel for Henry submits that the court should declare that Jesse is not entitled to share in Jadwiga’s estate.
[28] Counsel for Jesse submits that the court should declare that Jesse is included in the term “issue”, and thus is entitled to share in Jadwiga’s estate.
[29] Counsel for Jesse points out that the presumption, that the word “child” and similar terminology did not include persons born out of wedlock, was judge-made law, formulated at a time when social mores were different. In the 19th century and earlier, when the principle was created and first expressed by the courts in England, children born out of wedlock, who were considered to be “illegitimate”, were presumed to be of a different social order than children born within marriage. In the 20th century, attitudes towards so-called illegitimate children began to change, and certainly during the latter part of the 20th century and now, in the 21st century, there can be no principled reason to distinguish between children born out of wedlock and those born within marriage. The term “child” will include both. The ordinary meaning of the word will include both.
[30] Counsel submits that this change in social attitudes has been reflected in changes in legislation and in the caselaw.
[31] Counsel submits that the old presumption was judge-made law that was based on public policy at the time it was created. There is simply no reason in principle why judge-made law cannot be changed, based on the clear evolution of public policy as it relates to the status of children born out of wedlock.
[32] Counsel submits that the existence of s.1(4) of the Succession Law Reform Act should not alter this conclusion. It simply states that the presumption set out in s.1(3) is to be effective as of March 31, 1978, for wills made after that date. It says nothing about whether the courts can change the judge-made presumption for wills made prior to that date.
[33] Counsel points out that similar issues have arisen in British Columbia, where the legislature created a similar presumption, which was said to be effective for wills made after March 31, 1960. Notwithstanding that provision, the courts in British Columbia have decided, based on public policy grounds, that the earlier judge-made rule should be altered notwithstanding the legislative provision.
[34] For these reasons, counsel for Jesse submits that the court should declare that Jesse is entitled to one-half of George’s share of Jadwiga’s estate.
[35] Authorities referred to by the parties include Hill and Simmons v. Crook (1873), L.R. 6 H.L. 265 (H.L.); Spence v. BMO Trust Co., 2016 ONCA 196, 129 O.R. (3d) 561 (C.A.); Robinson Estate v. Robinson, 2011 ONCA 493, 106 O.R. (3d) 321 (C.A.); Re McLaughlin (1977), 16 O.R. (2d) 375 (H.C.J.); Re Burke, [1960] O.R. 26 (C.A.); Re Brand Estate, [1957] O.W.N. 26 (H.C.J.); Re Herlichka, [1969] 1 O.R. 724 (H.C.J.); Lobb v. Lobb (1910), 21 O.L.R. 62; aff’d 22 O.L.R. 15 (Div. Ct.); Re Millar Estate, [1938] S.C.R. 1; Re Nicholls, [1973] 2 O.R. 33 (H.C.J.); Brule v. Brule Estate, [1979] 2 S.C.R. 343; Re Hogbin, [1950] 3 D.L.R. 843 (B.C.S.C.); Re Hervey (1961), 3 D.L.R. (2d) 615 (B.C.S.C.); Re Stevenson (1966), 66 D.L.R. (2d) 717 (B.C.S.C.); Re Dunsmuir (1968), 67 D.L.R. (2d) 227 (B.C.S.C.); and Re Simpson Estate (1969), 70 W.W.R. 626 (B.C.S.C.).
[36] Also referred to was an article by Professor P.W. Hogg: “Wills – Bequest to Wife and Children – De Facto Wife and Illegitimate Children” (1972), 50 Can. Bar. Rev. 531.
Analysis
[37] As is invariably the case, the issue in construing any will is to determine the intention of the testator.
[38] There is no prohibition against leaving property to children or grandchildren born out of wedlock. If the testator makes his or her intention clear, that can be done. The difficulty in any particular case is in discerning what the testator intended.
[39] The old presumptive rule was that in construing neutral terminology, such as the word “child”, in the absence of evidence of surrounding circumstances showing a contrary intention, it was presumed that that sort of terminology included only “legitimate” children or grandchildren, that is, children or grandchildren born of parents who were married.
[40] Perhaps the most authoritative, and oft-quoted, statement of the principle is that found in the judgment of Lord Cairns in Hill, supra, at p.282, as follows:
My Lords, I have had an opportunity since the argument of this concluded, and I have felt it my duty, to look with considerable care through the long line of cases, most of which were referred to in the argument at your Lordships’ Bar, upon the subject of a will dealing with children who are said to be illegitimate. I have referred to those cases not with the view of finding a will exactly parallel with the present, for that, indeed, would be a hopeless task, but for the purpose of extracting any principle which appeared to be the ratio decidendi of those various cases. And what appears to me to be the principle which may fairly be extracted from the cases upon this subject is this – the term “children” in a will prima facie means legitimate children, and if there is nothing more in the will, the circumstance that the person whose children are referred to has illegitimate children will not entitle those illegitimate children to take. [Emphasis added]
[41] Having set out the general principle, Lord Cairns went on to describe two classes of cases in which the prima facie interpretation is to be departed from. At pp. 282 and 283, he stated as follows:
But there are two classes of cases in which that prima facie interpretation is departed from. One class of cases is where it is impossible from the circumstances of the parties that any legitimate children could take under the bequest. A familiar example of that might be given in this way: - Suppose there is a bequest “to the children of my daughter Jane,” Jane being dead, and having left illegitimate children, but having left no legitimate children. There, inasmuch as the testator must be taken to have known the state of his family, and must be taken to have intended to benefit some children of his daughter Jane, and inasmuch as she had no children who could be benefited except illegitimate children, rather than that the bequest should fail altogether the Courts will hold that those illegitimate children are intended, and they will take under the term “children”. Having referred to that class of cases, I may put them altogether aside; for your Lordships will observe that that class of cases can have no bearing upon the present case, because here, as was truly said, there was no reasons why legitimate children might not take under the bequest in this will.
The other class of cases is of this kind. Where there is upon the face of the will itself, and upon a just and proper construction and interpretation of the words used in it, an expression of the intention of the testator to use the term “children” not merely according to its prima facie meaning of legitimate children, but according to a meaning which will apply to, and which will include, illegitimate children. I might give again a familiar illustration of that class of cases by the supposition of a bequest upon which, I presume, there would be no argument. Suppose that a testator were to say in his will, “being aware that my daughter, who is now married to her husband, had before her marriage children by the same person, who in law are illegitimate children, and it being my intention to provide for all the children of my daughter, I give funds to trustees upon trust for her for life, and after her death to divide the funds among the children of my said daughter.” I apprehend that no person reading a bequest of that kind could hesitate to say that the testator had shewn upon the face of his will, by the words which he had used, his intention, in a way that could not be mistaken, to use the generic term “children” so as to include illegitimate children along with legitimate children.
[42] In the actual case, Lord Cairns held that the illegitimate children of the testator’s daughter, Mary, were entitled to inherit. He noted that the testator had called his daughter’s partner his “son-in-law”, and made reference to his daughter Mary as the “wife” of John Crook. In the circumstances, he held that the use of the term “children” of his daughter Mary could only have been intended to refer to illegitimate children.
[43] The presumption articulated by Lord Cairns has been applied in Ontario: see Re Brand Estate, supra; and Re Herlichka, supra.
[44] The exceptions referred to by Lord Cairns have also been applied in Ontario: see Re McLaughlin, supra; and Lobb v. Lobb, supra. Indeed, in Lobb, it was held that the surrounding circumstances were compelling enough that they led to the conclusion that on a proper interpretation of the will under consideration, it was only illegitimate children who could inherit, to the exclusion of legitimate children. A similar conclusion was reached in Re Nicholls, supra.
[45] The most authoritative acceptance of the principle articulated by Lord Cairns is the decision of the Supreme Court of Canada in Re Millar Estate, supra. In that case, the late Charles Millar had made a will in which he instructed his trustees to invest the residue of his estate for nine years, and then pay it to “the mother who has since my death given birth in Toronto to the greatest number of children as shown by the registrations under the Vital Statistics Act.” One of the issues before the court was whether this included illegitimate children as well as legitimate children. The Ontario Court of Appeal had held that it did not include illegitimate children. As to this point, Duff C.J.C. stated:
The determination of this controversy as to validity involves the decision of a point of construction, viz., whether the word “children”, as here employed, includes illegitimate children. That question was answered in the negative by Mr. Justice Middleton and by the Court of Appeal. We think it sufficient to say that we agree with this conclusion, which rests upon the reasons fully stated in the able judgments delivered by the Chief Justice of Ontario and Riddell J.A. in the Court of Appeal and by Middleton J.A.; and we think it unnecessary to add anything to these reasons.
[46] The case before the Court of Appeal for Ontario was argued before a bench consisting of five judges: see Re Millar, [1937] 3 D.L.R. 234 (Ont. C.A.). The principal judgment was delivered by Rowell C.J.O. At p.238, he stated:
Coming now to the main subject-matter of the appeal, namely, the validity of cl. 9 of the will, this question depends upon the construction which should be placed upon the clause. Does the word “children” as there used mean legitimate children? Or does it include illegitimate children? It is a well-established rule of construction that a gift to children means prima facie legitimate children.
[47] At p.239, in referring to the judgment of Lord Cairns in Hill, he stated:
Notwithstanding this tendency as illustrated by more recent judicial decisions, the cases referred to by counsel show that it still requires clear evidence that the testator intended to include illegitimate children under a bequest to children, to enable them to take under such bequest. This intention may be manifested either on the face of the will or in the conditions or circumstances of the testator’s family.
[48] The cases in British Columbia have adopted the opposite rule of construction: where there is nothing in the language of the bequest to signify a different intention, the use of the word “child” or similar terminology will mean, prima facie, that the testator intends to benefit children born out of wedlock as well as children born to married parents: see Hogbin; Hervey; Stephenson; and Dunsmuir, supra. In Simpson Estate, supra, the court looked at extrinsic evidence to determine that the testator had looked upon his son born out of wedlock as his son to benefit under his will.
[49] It should be noted that in at least two of the British Columbia cases, the court considered what was enacted as section 31 of the Wills Act of British Columbia:
- In the construction of a will, except when a contrary intention appears by the will, an illegitimate child shall be treated as if he were the legitimate child of his mother.
[50] By section 47 of the same Act, it was stated that the Act was made to apply only to wills made after March 31, 1960. Legislation in British Columbia since 1927 had also provided that in cases of intestacy, illegitimate children would inherit on the same basis as legitimate children. In both Hervey and Stevenson, it was held that s.47 of the Act did not affect the ability of the Court to hold that the old judge-made rule of construction should not apply to wills made before March 31, 1960.
[51] In 1972, Professor Hogg wrote his thoughtful article that I referred to above. It appears to have been written specifically in response to the decision of Osler J. in Herlichka, supra.
[52] Osler J. came to the conclusion that the use of the word “wife” in the will under consideration meant lawful wife, and the meaning of the word “child” meant legitimate child. Professor Hogg criticized the decision on the basis that it would have been open to Osler J. to have decided the case on one of the exceptions to the general principle that had been referred to by Lord Cairns in Hill. Professor Hogg thought some of the terminology used in the will should have been enough to result in the conclusion that the testator intended to include illegitimate children.
[53] Professor Hogg went on, however, to suggest that the presumption articulated by Lord Cairns in Hill was no longer appropriate in 1972. Professor Hogg advocated the reversal of the presumption, as had been held to be appropriate in the British Columbia cases to which I have referred. At p.538 of his article, he stated:
But surely all but the most ardent advocates of the declaratory theory of the judicial function would allow the courts the power to acknowledge that the prima facie meaning of an ordinary word may change with the times. We are, after all, dealing only with a rule of construction. The new prima facie meaning would still give way to indications in the will itself or the circumstances surrounding its execution that the testator did indeed intend to exclude illegitimate children.
[54] In Re Nicholls, supra, Pennell J. decided the case on the basis of one of the exceptions referred to by Lord Cairns in Hill. In construing the meaning of the word “grandchildren”, he found that there was nobody who answered the strict meaning of legitimate grandchildren. Thus, it had to mean, in the circumstances, illegitimate grandchildren.
[55] Pennell J. added the following obiter comments on pp. 36 and 37:
There is a further and different argument in favour of including the illegitimate grandchildren. It is said that the court should remove the practical injustice that must flow from the artificiality of the old rules of construction and that except when a contrary intention appears by the will an illegitimate child should be treated as if he were the legitimate child of his mother.
[56] Pennell J. then referred with approval to the article by Professor Hogg, and particularly the following passage from his article at p.538:
Attitudes to illegitimacy have changed. We no longer attempt to visit the sins of the father on the children. We no longer believe that recognition of the claims of illegitimate children will encourage immorality...and these changes are abundantly reflected in the statutes of every jurisdiction...which place illegitimate children for many purposes on an equal footing with legitimate children.
[57] The change in societal norms, at least as far as the interpretation of statutes is concerned, is reflected in the decision of the Supreme Court of Canada in Brule, supra. The issue in that case was whether an illegitimate child could take as a preferred beneficiary under the Insurance Act, s.158 of which stated that “preferred beneficiaries are the husband, wife, children, adopted children, grandchildren, children of adopted children, father, mother and adopting parents of the person insured.”
[58] The judgment of the majority of the court was delivered by Laskin C.J.C. He held that the ordinary meaning of the word “child” includes any natural-born person, and is not restricted to a person born of married parents. He stated:
However, it is undeniable that the ordinary, the literal meaning of the word “child” is offspring, the immediate progeny of the mother who bore the child and of the father with whom the child was conceived. To say that the word “child”, standing unqualified in a statute, means legitimate child only is not to take the ordinary meaning, but rather to take away from it by a legal modification said to be compelled by the common-law, to gloss it by a judicial policy that put illegitimate children beyond the pale of the law.
[59] Ultimately, he held that there were three features that compelled the conclusion that the court ultimately reached, that is, that the term “children” included illegitimate children. First, he held that the ordinary meaning of the term was clear enough. Second, he held that there was no clear course of decision that must stand in the way of the court’s freedom to come to its own conclusion on how to construe the statutory provision. Third, he referred to the issue of policy, as follows:
On the third question, that of policy, I see no social interest that would be advanced by depriving a parent of the right to designate a natural child as a preferred beneficiary. Certainly, the matter is of no consequence to the insurer, and as between an estranged wife and a natural child of the insured, the latter would be expected to show a preference for his child. To leave the choice to him is to emphasis the private as opposed to any public interest in the matter. Why then should a now out-worn common-law approach be invoked to deny such a preference?
The promotion of at least a moral duty to a natural child is a preferable policy to one looking upon such a child as a filious nullius. I am unaware of any redeeming factor in favour of the latter position, certainly, if legislation can be construed, consistently with its words, to permit a parent to exhibit his sense of obligation to his natural child the construction should not be blighted by bringing up echoes of a past that courts have abandoned in more recent concern with other statutes...
[60] Brule is actually of limited assistance because it interprets the words of a statute. Presumptions in the interpretation of wills and other instruments are simply that: presumptions. It is always open to a testator or the maker of another instrument to make his or her intention clear, regardless of a presumption. That is not the case in the construction of a statute, which will always bear the meaning that a court, and certainly a court of final appeal, gives to it.
[61] Professor Hogg’s article, and the decision of Pennell J. in Nicholls, were written before there was any significant legislative reform in Ontario.
[62] In 1978, the Succession Law Reform Act was enacted. For ease of reference, s. 1(3) and (4) provide as follows:
- (3) In this Act, and in any will unless a contrary intention is shown in the will, a reference to a person in terms of a relationship to another person determined by blood or marriage shall be deemed to include a person who comes within the description despite the fact that he or she or any other person through whom the relationship is traced was born outside marriage.
(4) Subsection (3) applies in respect of wills made on or after the 31st day of March, 1978.
[63] The conundrum presented by these provisions is apparent: in view of s.1 (4), is it open to the court to apply the presumption spelled out in s.1(3) to wills made before March 31, 1978? With considerable regret, I do not think so.
[64] In the absence of s.1(4), and indeed in the absence of s.1(3), I would have little difficulty in arriving at the same policy choice made by the judges who decided the British Columbia cases. I say that, notwithstanding the authoritative judgment of the Supreme Court of Canada in Millar. One cannot overlook the changes in social norms since the Hill case was decided in 1873, and the Millar case in 1938. For the policy reasons outlined by Laskin C.J.C. in Brule, it makes little sense to construe the word “child” and similar terminology in anything but its ordinary meaning. If the court were free to apply its own notions of public policy, I would have little difficulty construing Jadwiga’s will as proposed by Jesse’s counsel. While public policy may be an unruly horse, there are times when it can be safely ridden to produce an appropriate result.
[65] However, where policy choices are made by the legislature they must be respected by the courts.
[66] Counsel for Jesse relies on the legislative debates that led up to the enactment of the Succession Law Reform Act in 1978. In my view, those debates actually appear to reflect a deliberate decision to restrict the interpretive change to wills made after March 31, 1978.
[67] When the bill leading to the Act received first reading, it does not appear that the presumption was to apply only to wills made after the effective date of the Act. The Attorney General, the Honourable Mr. Roy McMurtry (as he then was) stated:
By removing the consequences of illegitimacy in inheritance matters, the bill before the House introduces the additional principle of equality between children of a deceased person whether those children were born within or outside marriage.
[68] Prior to second reading of the bill, it appears that there were representations made by a special committee established by the Wills and Trusts Subsection of the Ontario Branch of the Canadian Bar Association. In the course of moving second reading, the Attorney General stated:
Perhaps the most important change that I propose to make at this time is the adoption of the Bar Committee’s recommendation concerning s.1. That section would equalize the position of children within or outside marriage for the purposes of estates and would deem all references to a child in a will to include a child born outside the marriage.
Now, the Bar Committee pointed out that there may be many persons who have drawn their wills in reliance on the existing law under which a reference to a child is deemed to include only a child born within marriage. It has been stated that it would put these persons through a great deal of time, trouble and expense to rewrite their wills under the new law. And some of these persons may even, for example, have lost the mental capacity to revise their wills. I should say that I am not convinced, but on balance it perhaps would be fair to restrict the application of s.1 to wills made after the Act comes into force.
[69] It would appear that at the Committee stage, the recommendation of the Bar Committee was accepted, and the bill was amended so that the change in the presumption was to be effective only as of the date the Act came into force, as is now reflected in section 1(4) of the Act.
[70] The amendment was opposed by the Opposition. Mr. Albert Roy (Lib., Ottawa East) said:
We’re dealing here basically with illegitimate children. The wise and honoured members of the committee suggested that should be changed and should apply only to wills made after July 1, 1977.
[71] He also stated:
I think the amendment, as contemplated by the hon. members and as proposed by the Attorney General, is in some ways offensive to the whole package of this new legislation, the family property legislation, the Marriage Act and so on, because you know we seek, in Ontario, after this legislation, to legitimize children born out of wedlock. We proceed further to give some status and some obligations and rights to common-law relationships and children flowing from that type of relationship. Yet under this we may be 50 years down the way where we’re still saying that certain illegitimate children will be denied because the wills were made before July 1, 1977.
[72] Notwithstanding these concerns, the bill was enacted with s.1(4) included, as it now reads. The prediction made by Mr. Roy has come true. While 39 years have elapsed rather than 50, it remains the case that wills made before the effective date of the Act are treated differently than those made after that date.
[73] In my view, to give effect to the argument of Jesse’s counsel would to be read s.1(4) out of the Succession Law Reform Act. Notwithstanding the clear intention of the legislature that the change in the presumption should apply only to wills made after March 31, 1978, the change in the presumption would apply to all wills, whether made before or after that date. I know of no principle of law that would allow me to read out of the Act a provision that has been duly enacted by the legislature.
[74] One of the cardinal principles of interpretation of statutes is the presumption against tautology. In the fifth edition of her text, Construction of Statutes (2008), Professor Sullivan states, at p.210:
It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.
[75] After referring to caselaw, she continues on the same page, as follows:
As these passages indicate, every word and provision found in a statute is supposed to have a meaning and a function. For this reason, courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.
[76] In my view, to adopt the meaning advanced by Jesse’s counsel would mean that not only would s.1(4) of the Act be rendered pointless and meaningless, it would in effect be repealed by judicial fiat. That approach is simply not open to me.
Disposition
[77] For the foregoing reasons, it is declared that Jesse Sullivan is not entitled to share in the estate of Jadwiga Koziarski.
[78] As discussed with counsel at the argument of the application, it is my intention to award costs of both parties out of the estate on a substantial indemnity basis. This is one of those cases where the difficulty has been created by the testator through the words chosen in her will. Accordingly, I order costs, inclusive of disbursements and HST, payable as follows:
a) To the applicant - $38,000; b) To the respondent - $24,000.
[79] I am grateful to counsel for their assistance in this difficult matter.