Friday, October 14, 2011

Peri v. McCutcheon

This morning, the British Columbia Court of Appeal released its decision in Peri v. McCutcheon, a case in which it was asked to give an expanded interpretation of the meaning of “children” in the Wills Variation Act. The Court was asked to interpret the word "children" to allow child who was neither the biological or adopted child of a person to apply to vary his will. In British Columbia, the Wills Variation Act allows a child, including an independent adult child, to apply to court to vary his or her parent’s will if the parent has not made “adequate provision” for the child in the will. If the court finds that adequate provision has not been made, the court may order such provision for the child as the court decides is “adequate, just and equitable in the circumstances."

In the past the courts have interpreted “children” under the Wills Variation Act to be limited to either the parent’s biological children, or children that the parent has legally adopted. This means that a step-child cannot make a claim under the Wills Variation Act to vary the step-parent’s will (unless the step-parent adopted the step-child). In 1994, in a decision called Hope v. Raeder Estate, the Court of Appeal held only a biological or adopted child could apply under the Wills Variation Act. In Hope the Court held that it was not open to the Court to give the word “children” an extended meaning. The Court said that only the Legislature could extend the meaning under the Wills Variation Act to include step-children.

In Peri, the British Columbia Court of Appeal sat as a five court paned. Usually, three judges of the Court of Appeal hear an appeal from a decision of the Supreme Court of British Columbia. But a party to an appeal may request that five judges sit in order to reconsider a decision in an earlier case.

Deborah Peri was seeking to vary the will of Harbanse Doman, who made no provision in his will for her. Mr. Doman was married to Ms. Peri’s mother when Ms. Peri was born, but he was not her biological father. Ms. Peri was born in Seattle, and Mr. Doman identified himself as her father on her registration of birth, and on immigration papers allowing her to immigrate to Canada. He arranged for her to live with another family, and paid support for her. He also paid for a private school for her, paid expenses while she was in college, and paid wedding expenses for her. He met with her occasionally. However, he kept a physical and emotional distance from her, and made it clear to her that he was not her father, did not intend to be her father, and did not consider her as part of his family.

The Court of Appeal declined to give “children” an extended meaning in this case to include Ms. Peri.

But what is most intriguing about this decision is that the Court of Appeal did not rule out the possibility that the court might give the word “children” an extended meaning to include a step-child under the Wills Variation Act in a future case. The Court of Appeal did not consider the facts of this case compelling, finding that Mr. Doman’s did not stand in the position of a parent to Ms. Pari.

Madam Justice Prowse wrote:

[ 36] In the absence of a more compelling case than has been presented, I do not find it necessary to grapple with the question of whether it should be left to the Legislature to expand the scope of who may claim as a “child” or “children” of a testator under the Act, or whether social, scientific and other circumstances have changed so significantly that it is appropriate for the Court to re-interpret those words. Thus, I find no basis for interfering with the decision of the chambers judge that Ms. Peri is not a child of the Testator within the meaning of s. 2 of the Act.

The Court of Appeal left the door open—just a crack—to a step-child with more compelling circumstances showing that he or she had a parent-child-like relationship with a step-parent to persuade the Court of Appeal to give the word “children” an extended meaning under the Wills Variation Act.

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