The BC Court of Appeal decision of Clayton v Markolefas 2002 BCCA 435 stands for the proposition that a natural child of the testator, who has been adopted by another parent, is NOT entitled to inherit from the estate of his intestate natural parent.
Nor can he be eligible for a claim under the Wills Variation act provisions of what is now incorporated into WESA
[1] The petitioner appeals from a decision of Chief Justice Brenner dismissing, on a case stated under Rule 34, her petition claiming a share in the distribution of an intestate estate under s.84 of the Estate Administration Act, R.S.B.C., 1996:
If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person’s estate must be distributed per stirpes among the issue.
Section 81 provides:
“issue” includes all lineal descendants of the ancestor.
The petition was dismissed on the ground that she is, as a matter of law, precluded from sharing in the estate.
[2] The petitioner claims to be “issue” of the intestate. For the purpose of stating a case, the parties have agreed that the intestate was her natural or birth father but that, in 1968, she was adopted by persons unrelated to her birth parents. The point of law raised by the stated case is:
Does the fact that the Petitioner was adopted in 1968 pursuant to the Adoption Act, RSBC 1960, c4, preclude or bar the Petitioner from claiming or sharing in the estate of Andre Markolefas, deceased, her natural father, who died intestate in 1998.
[3] The Adoption Act of 1960 became, in the 1979 revision, R.S.B.C. 1979, c. 4. There was no material change in the Adoption Act from 1960 until the 1979 Act was repealed and replaced by the Adoption Act, R.S.B.C. 1996, c. 5. It was settled law until 1996 that an adopted child was not “issue” of his or her natural parents for the purpose of intestate succession. The sole question is whether the 1996 amendment leads to a different result. The relevant provisions of the Estate Administration Act were in effect during the whole of the period from 1960 to 1996. There were no amendments to those sections in that period.
[4] The earliest case holding that there are no rights of intestate succession between an adopted child and his or her birth parent was Re Jensen (1964), 47 D.L.R. (2d) 630 (B.C.S.C.), a decision of Mr. Justice Branca. The reasoning in that case was approved and applied by this Court in Mernickle v. Westaway (1986), 1 B.C.L.R. (2d) 267. Those authorities rested entirely upon the effect of these provisions of the former Act:
11. (1) For all purposes an adopted child becomes on adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock.
(2) For all purposes an adopted child ceases on adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.
(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).
[5] The reasoning underlying the conclusion that an adopted child had no rights of intestate succession against a natural parent was stated thus by Seaton J.A. for the court. After quoting the three subsections quoted, supra, he said:
In my view, when subs. (2) says that an adopted child ceases on adoption to be the child of his existing parents, it uses the word “child” broadly. I do not think that one who is not the child of a person can be the issue of that person within the Estate Administration Act. I am influenced, too, in that interpretation by the introductory words “for all purposes”. They are broad. The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.
The 1996 amendment of the Act was very extensive. In the present s. 37, which replaces s. 11 of the former Act, nothing remains of the language of s. 11(2) upon which the decision in Mernickle was primarily based. Nor do the words “for all purposes”, which supported the conclusion in Mernickle, appear.
[6] That being so, the Mernickle line of cases cannot be regarded as binding authority with respect to the question which has arisen between the parties. It must be decided upon the wording of the present Act and, in particular, s.37 which, like the former s.11, deals with the effect of an adoption order. Section 37 reads:
37 (1) When an adoption order is made,
(a) the child becomes the child of the adoptive parent,
(b) the adoptive parent becomes the parent of the child, and
(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.
(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,
(a) the adult joins the birth parent as parent of the child, and
(b) the child’s other birth parent ceases to have any parental rights or obligations with respect to the child.
(3) If a child is adopted for a second or subsequent time, the adoption order has the same effect on the child, on the new adoptive parent and on the former adoptive parent as it does on the child, on the adoptive parent and on the birth parents or parent under subsections (1) and (2).
(4) Subsections (1) to (3) do not apply for the purposes of the laws relating to incest and the prohibited degrees of marriage.
(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.
(6) An adoption order does not affect an interest in property or a right of the adopted child that vested in the child before the date of the adoption order.
(7) An adoption order does not affect any aboriginal rights the child has.
It will be seen that s. 37(1) retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.
[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents ceases to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.
[8] Section 37(6) of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:
The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.
.
[11] The 1996 Act has effected many modifications of the law relating to adoption. Perhaps most importantly, it has modified the policy which underlay the previous Act which went so far in attempting to abolish any relationship or link between the birth parents and birth child that the child might never know that he or she was not related by blood to the adopting parents. The present Act, by such means as creating a birth father’s registry (s. 10) and making provision for openness and disclosure (Part 5), recognizes genetic reality and the human desire to know, for better or worse, to whom one is related by blood. But in respect of legal rights and obligations, the fundamental premise remains the same. For those purposes, the adoptive parents are the parents and the adopted child is their issue.
[12] Having reached that conclusion, I find it unnecessary to consider the policy considerations which were touched upon by the Chief Justice and which were strongly emphasized by Mr. Di Bella in pointing out the undesirable consequences which could flow from granting to adopted children a right of succession against their birth parents. As to that, I will say only that those matters would justify serious consideration were such a radical change in the law to be considered.
[13] I would dismiss the appeal.
“THE HONOURABLE MR. JUSTICE ESSON”
