Re Southam Estate*
[Indexed as: Southam Estate (Re)]
52 O.R. (3d) 450
 O.J. No. 5050
Court File No. 00-CV-15549
Ontario Superior Court of Justice
December 18, 2000
*Note: This judgment was recently brought to the attention of the editors.
Wills and estates–Wills–Interpretation–Will drafted in 1950 providing that income to be paid to annuity for testator’s widow and that testator’s four children (and/or his or her spouse and/or children and/or grandchildren) to share remainder of income in such shares as trustees might determine
–Provisions of will varied by Deed of Arrangement in 1992
–Deed of Arrangement providing for income from sub-trusts in names of testator’s children to be divided equally among “minor contingent beneficiaries” who were grandchildren of each of named sub-trusts then living or their issue–“Minor contingent beneficiaries” should be interpreted as including children born outside of marriage.
The testator’s will, drafted in 1950, provided for income to be paid to an annuity for his widow. After that was paid, his four children shared in the remainder of the income and/or his or her spouse and/or his or her children and/or his or her grandchildren, in such shares as the trustees might determine. The testator died in 1954. The provisions of the will were varied by a Deed of Arrangement in 1992. The Deed of Arrangement was divided into four sub-trusts in the names of the testator’s children. It also provided that until the date of distribution, the income from each of the sub-trusts was to be divided equally among the “minor contingent beneficiaries” who were the grandchildren of each of the named sub-trusts then living or their issue. The executors of the estate sought the advice and direction of the court as to whether issue born outside of marriage ought to be included under the provisions of the will.
Held, the question should be answered in the affirmative.
The direction of public policy in Ontario is clear. The rule of construction in s. 2 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 must be applied to any instrument made on or after March 31, 1978. Consequently, the Deed of Arrangement and its interpretation were governed by the rule of construction set out in s. 2, which requires that the provision in s. 1 of the Act that for all purposes of the law of Ontario a person is the child of his or her natural parents, regardless of whether the child is born within or outside marriage, be applied.
Hill v. Crook (1873), L.R. 6 H.L. 265, 42 L.J. Ch. 702, 22 W.R. 137 (H.L.); Hogbin Estate (Re),  3 D.L.R. 843,  2 W.W.R. 264 (B.C.S.C.); Ketterer v. Griffith,  O.R. 540, 28 D.L.R. (2d) 469, affd  S.C.R. 241, 31 D.L.R. (2d) 662 (sub nom. Gage (Re)); Plummer v. Air Canada,  2 S.C.R. 343, 94 D.L.R. (3d) 48, 25 N.R. 118,  I.L.R.
Plummer), consd Statutes referred to Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 1, 2
APPLICATION for advice and directions.
Thomas A. McDougall, Q.C., and Shawn W. Minnis, for the Executors of the Estate.
Robert Houston, Q.C., for the Minor Beneficiaries who have not attained Majority.
W. Ormond Murphy, for the Possible Minor Beneficiaries of the Minors’ Trust of the Estate of Harry S. Southam.
 MCWILLIAM J.:–This application sought the advice and direction of the court whether issue born outside of marriage ought to be included under the provisions of a Last Will drafted in 1950. Those provisions were themselves varied by a Deed of Arrangement by order of this court on December 4, 1992. There are four possible minor contingent beneficiaries born out of wedlock, 12 minor beneficiaries who have not attained the age of majority, and 13 minor beneficiaries who have attained the age of majority.
 The original scheme of the testator’s will (he died in 1954) provided for the income to be paid to an annuity for his widow. After that was paid, his four children shared the remainder of the income and/or his or her spouse and/or his or her children and/or his or her grandchildren, in such shares as the trustees might determine. The date of distribution was set to be one year after the death of the last child of the testator (the child is still living).
 The Deed of Arrangement, the “Minors’ Trust”, was divided into four (4) sub-trusts in the names of the testator’s children. It also provided that until the date of distribution, the income from each of the sub-trusts was to be divided equally among the “Minor Contingent Beneficiaries” who were the grandchildren of each of the named sub-trusts then living or their issue. The Deed of Arrangement does not expressly specify whether the “Minor Contingent Beneficiaries” were to include issue born outside of marriage. The 1950 will was also silent as to precisely what “issue” included.
 Counsel advise that they can find no Ontario case which establishes the right of children born out of wedlock to be included in these circumstances. It seems that the legacy of Hill v. Crook (1873), L.R. 6 H.L. 265 at p. 265 [headnote], 42 L.J. Ch. 702 (H.L.) may still exist: “The word ‘children’ used in a will prima facie means legitimate children, and no other meaning can be given to it by any conjectural application of other words found in the will and supposed to show the testator’s intention; there must be clear evidence of that intention in the will itself to establish another application of the word.”
 In Re Gage,  O.R. 540, 28 D.L.R. (2d) 469, the Ontario Court of Appeal adopted that principle and held [at p.540 O.R., headnote] that child “means a lawful child procreated by the parent named, unless there be applicable legislation extending the meaning, as, for example, by including adopted children”. Such legislation could not have retrospective effect. In Re Hogbin Estate,  3 D.L.R. 843,  2 W.W.R. 264, the B.C. Supreme Court took the opposite view and found that the broad principle stated in the Crook case was obiter, and, in any event, “judge-made law”. Manson J. said at p. 847 D.L.R.: “Certainly the social conditions in British Columbia were in 1858 far different from those in England and one cannot think of any reason why this harsh interpretation of the word ‘child’ should form part of our law.”
 The words of Laskin C.J. in the Supreme Court of Canada in Brule v. Plummer,  2 S.C.R. 343 at p. 346, 94 D.L.R. (3d) 48 are apposite: “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
. . . . It seems to me that if there is nothing in the statute, taken as a whole, to require that the reference to children be confined to legitimate children, then we are faced squarely with the problem whether we wish at this time to continue to gloss the word with the limited meaning that some Courts in the past have placed upon it.”
 The direction of public policy is clear. The “role ofparentage” in the Children’s Law Reform Act, R.S.O. 1990, c.C.12 says:
1(1) Subject to subsection (2), for all purposes of the law of Ontario a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage.
 The common law distinction was expressly abolished — s. 1(4).
 The rule of construction in s. 2 must be applied to “any instrument made on or after the 31st day of March, 1978.” Consequently, the Deed of Arrangement of December 2, 1992 and its interpretation is governed by the rule of construction set out in s. 2, which requires s. 1 to be applied.
 For these reasons the following questions are answered “yes”
(1)Question No. 1: Having regard to the provisions of the Last Will and the Deed of Arrangement approved by the then Ontario Court (General Division), does the definition of Minor Contingent Beneficiaries in the Deed of Arrangement include issue born outside of marriage?
(2)Question No. 2: If the answer to Question No. 1 is yes, are the Trustees authorized to make payment to issue born outside of marriage out of the Minors’ Trust established by the Deed of Arrangement?