Carroll, Paul A. C.

English

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 3, Number 3 (October 1965) Article 4Conflict of Laws: Montano v. Sanchez [1964]S.C.R. 317Paul A. C. CarrollFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationCarroll, Paul A. C.. "Conflict of Laws: Montano v. Sanchez [1964] S.C.R. 317." Osgoode Hall Law Journal 3.3 (1965) : 455-461.http://digitalcommons.osgoode.yorku.ca/ohlj/vol3/iss3/4Supreme Court Reviewquently overlooked or even denied by orthodox jurisprudence. Thefacts are the variables upon which success and failure depend. Judgeswill say that facts are not open to dispute on appeal, but when regardis had to the judicial ingenuity in ascribing different legal effects torigid facts, this immutable principle serves as no fetter on their con-tinuing search for instinctive justice.CONFLICT OF LAWSMontano v. Sanchez [1964] S.C.R. 317.PAUL A. C. CARROLL*CONFLICT OF LAWS - SUCCESSION TO MOVEABLES - LEGITImACY ANDLEGITIMATION - STATUS AND INCIDENTS OF STATUS.In Montano v. Sanchez,' on an appeal from the Ontario Court ofAppeal,2 the Supreme Court of Canada considered the very confusingfield of legitimacy as related to the problem of succession to moveablesunder the will of an Ontario domiciliary. In a concise judgment, ineffect approving unanimously the decision of the Court below, theSupreme Court held that, for the purposes of succession, legitimacywas a question of status to be governed by the ex domicilii and not amatter of construction of the will to be determined by the lex succes-sionis. However, in so holding, they assumed what appears to be arather novel approach to what is in fact a very old problem, anapproach which was inherited from the Court below.1. THE FACTUAL BACKGROUNDA testator domiciled in Ontario bequeathed certain personalty tothe "issue" of a grandson. The grandson, John Macdonald Wardrope,died domiciled in the State of Michoacan in the Republic of Mexico.He left two daughters surviving him, Elizabeth Macdonald Ward-rope Montano, born in lawful wedlock, and Maria Sanchez, born eightyears later, out of wedlock. At the time of the birth of Maria Sanchez,John Wardrope was domiciled in Mexico. He later married her motherin a religious ceremony but not in a civil ceremony which is requiredfor legitimation by subsequent marriage under the Mexican Civil Code.The testator having been an Ontario domiciliary the Zex succes-sionis was Ontario law. The will in question had provided for such aneventuality as here ensued by leaving the residue to his grandchildren*Mr. Carroll is a third year student at Osgoode Hall Law School.1 [1964] S.C.R. 317.2 Sub nom., Re Macdonald, [1962] O.R. 762.3 Consisting of Taschereau C. J. and Cartwright, Judson, Ritchie andSpence JJ.19651OSGOODE HALL LAW JOURNALor "the issue then living of any grandchild." The sole question beforethe Court was whether Maria Sanchez was one of the "issue of anydeceased grandchild" of the testator so as to be entitled under Ontariolaw to share in the estate.It was conceded by all parties that in construing the Ontario will theword "issue" meant "legitimate children". The parties also conceded4that it was first necessary to determine the status of any child claimingunder the will.Considerable emphasis was put on the testimony of a legal expertas to the law of Mexico, especially the State of Michoacan. By theevidence it was established that Maria Sanchez had obtained there anorder as to the paternity of John Wardrope. It was further establishedthat by the law of her domicile she was "illegitimate". However, thetestimony indicated that there was no difference in Mexico between thelegal rights and obligations incident to legitimacy and those incident toillegitimacy; the only difference between the rights of the respectivetypes of children was social.2. SuccEssioN AND LEGrrIviAcYAs noted above, the Court did not contest the submission that thelegitimacy or illegitimacy of a child was a question of status, butassumed this to be so. It supported this by reference to the case ofRe Andros,5 wherein Kay J. said:A bequest in an English will to the children of A means to his legitimatechildren, but the rule of construction goes no further. The questionremains who are his legitimate children. That certainly is not a questionof construction of the will. It is a question of status.By relying on this case the Court impliedly rejected the competingview founded on Shaw v. Gould6 that legitimacy was a question ofconstruction of the will and not status. It is interesting to note that theCourt of Appeal began on the same assumption.7 While the Courtof last resort gave no further support to its premise than is set outabove, the Ontario Court did elaborate on the matter, relying heavilyon Cheshire's Private International Law s a source which on carefulreading is rather cloudy on this particular area of the law (for whichit has this writer's understanding sympathy). The Court of Appealalso referred to the case of Re Goodman's Trusts9 wherein it wassaid that:... the question as to legitimacy is one of status, and in my opinion bythe law of England questions of status depend on the law of the domicil.The Court also relied on the passage from Re Andros10 cited by theSupreme Court. It is significant to note that both Re Andros and Re4 Supra, footnote I at 319.5 (1883), 24 Ch.D. 637.6 (1868), L.R. 3 H.L. 55.7 Supra, footnote 2 at 766.8 5th edition.9 (1881), 17 Ch.D. 266.10 Supra, footnote 5.(VOL. 3Supreme Court ReviewGoodcman's Trusts were legitimation cases and that no mention wasmade of Shaw v. Gould in either Court. Passing reference was made inthe Court of Appeal to the much maligned decision of Re Bischoif-sheim" wherein Romer J. held:•.. where succession to personal property depends on the legitimacy of theclaimant, the status of legitimacy conferred on him by his domicileof origin (i.e., the domicile of his parents at his birth) will be recognizedby our courts;This case has since been widely criticized by writers12 as failing toperpetuate the traditional distinction between legitimacy and legitima-tion1 3 in that it applied the rule of law laid down in legitimation situa-tions to a case where the sole issue was that of legitimacy. Thesimilarity of Re Bischoifsheim to the present case will be further notedlater in this paper.3. THE "BuNDLE OF RIGHTs" CONCEPTHaving established to their satisfaction that the question oflegitimacy was to be governed by the Zex domicilii as being a matterof status, the Court set about the task of ascertaining the status ofMaria Sanchez. Clearly on the expert testimony presented to theCourt she was "illegitimate" by the law of Mexico. However, theCourt relied heavily on that same evidence to point out that by the lawof her domicile, she enjoyed all the rights and obligations that wouldbe enjoyed by a "legitimate" child by the law of Ontario, that is, theex successionis&'4 In effect the Court took the position that legitimacyis a matter of status to be governed by the lex domicilii, but that whatis important is not the "tagname" that the lex domicilii puts on thatstatus, but what is the substance of the bundle of rights and obligationswhich goes to make up that status. Here, while Maria Sanchez wascalled "illegitimate", she enjoyed all the legal rights which by Ontariolaw, the lex successionis would be enjoyed only by a legitimate child.This principle, originating with the Court of Appeal, was approvedby the Supreme Court.This concept is in keeping with the principle of English law thatthe mere fact that a person has the status of a legitimate child does notmean that he will be entitled to succeed as such under an English will.That principle is that there is a distinction between the existence of astatus and the legal effects are incidents of that status.' 5 While theexistence of a status will be governed by the Zex domicilii, the merefact that such a status will be recognized by the lex fori does notnecesarily mean that the lex fori will accept the incidents flowingtherefrom. The extent to which such incidents will be allowed is gov-erned by the local law, and the public policy of the forum. This conceptis summed up by Falconbridge:11 [1948], Ch. 79.12 See Falconbridge (1949) 27 Can. Bar Rev. 1163.13 Shaw v. Gould, supra, footnote 6.14 Supra, footnote 1 at 323.15 C. K. Allen (1930), 46 L.Q.R. 277.1965]OSGOODE HALL LAW JOURNALIn other words, the child's right to claim as successor depended alwayson whether he was within the definition of child in English successionlaw and was not a mere question of status governed by the foreign law.16In the present case Maria Sanchez had the status of "illegitimate" butby her personal law she had all the rights and obligations of whatwould be, by Ontario law, a "legitimate" child. Granted, the Courttook a large step from the traditional concept, but it is submittedthat it was a logical step. There can be no meaning to a "tagname";status only becomes significant when its substance is analysed, and theCourt so held.4. THE BAsic ASSUMPTIONAs remarked above, both the Court of Appeal and the SupremeCourt of Canada commenced their judgments on the assumption thatlegitimacy is a matter of status to be governed by the lex domicilii.Such an asumption is not in keeping with the traditional current ofthe law, as developed from Shaw v. Gould,17 the House of Lords'classic decision on this point. The issue in that case was one of legiti-macy and the House of Lords said that legitimacy was a question ofconstruction of the will to be determined by the 7ex successionis:Whatever may be the views of Scotch Courts to the legitimacy of theappellants, your lordships are called upon to determine whether theyanswer a particular description upon principles of English law, and bythe rules of construction of an English will.18What the Court was saying was that the lex successionis dictates what"issue" means and goes on to decide by its own rules whether a claim-ant falls within the class of legitimate children.The contrary opinion was perhaps best propounded in the decisionof Romer L. J. in Re Bischoffsheim'9 which, although a case involvinglegitimacy, relied for its authority on legitimation cases such as ReGoodman's Trusts.20 It is this very reliance which has caused thedecision to be the subject of so much scorn by legal writers. Despitethis adverse criticism, the case has since been approved by the PrivyCouncil.21 The statement of Romer L. J. that has been the centre ofthis linguistic tempest is to the effect that:Where succession to personal property depends on the legitimacy of theclaimant, the status of legitimacy conferred on him by his domicil oforigin (i.e. the domicil of his parents at birth), will be recognized by ourcourts; and . .. if that legitimacy be established, the validity of hisparents' marriage should not be entertained as a relevant subject forinvestigation.22The essence of the criticism of that decision is that by relying onRe Goodman's Trusts and other legitimation cases, Romer L. . was16 Supra, footnote 12 at 1194.17 Supra, footnote 6.Is Id. at 57.19 Supra, footnote 11.20 Supra, footnote 9.21 Bamgbose v. Daniel, [1955] A.C. 107.22 Supra, footnote 11 at 92.(VOL. 3Supreme Court Reviewignoring the long-standing distinction between legitimacy and legiti-mation. Falconbridge argues along this same line.2 3 He contends thatthe decision confuses the distinction between status and the incidentsflowing from that status in a particular forum on a question governedby the Zex fori. This same criticism has been levelled at the Court ofAppeal decision of the present case.24 There is merit in this criticism ofRe Bischoffsheim because in that case, having held that legitimacy isa matter of status, the court put full weight on the "tagname" giventhe child by his Zex domicilii - if "legitimate" by that law, he islegitimate by English law. Clearly that does contradict the traditionalview, assuming that the Shaw v. Gou7d line of authority itself has anymerit.It is submitted, however, that in the end result, the samecriticism cannot be made of the present case. As argued earlier in thispaper, the Supreme Court, in approving the "bundle of rights" conceptpropounded by the Court of Appeal, is indirectly putting forwardexactly the concept that Falconbridge says was ignored in Be Bischoff-shzeim. The only difference is that the court here is saying that, bothin the case of legitimacy and legitimation, the question is primarily oneof status, but in the final analysis what really counts is whether thechild in question has the attributes required by the lex successionis toqualify under a will as "issue". This rather novel approach presents amuch simplified process for solving an old problem, and the court isto be commended for an uncharacteristic simplification of a field whichhas suffered from much semantic confusion. It also resolves thecomplaint expressed by Cheshire:That there should be one test for legitimation, another for legitimacy,argues some confusion of thought and is a proposition that on principlehas nothing whatsoever to commend it.25It would finally seem to be established, at least for CanadianCourts, that the uniform test of status (as interpreted by the courtsin the present case) will now be applied equally to the question oflegitimacy as it has in the past been applied to legitimation.5. CONCLUSIONTaking the case at its face value, the result is that the Courtallows Maria Sanchez to succeed under an Ontario will, although sheis "illegitimate" both by the lex domicilii and by the lex successionis.This raises the question of the propriety of the rule of constructionthat "issue" is to be treated as meaning "legitimate issue" only unlessit is impossible in the circumstances that any legitimate childrencould have been intended to take, or it is clear from the words of thewill that the testator intended to include illegitimate children.26 It isdifficult to conceive the original basis for this view, but it is presumed23 ,Supra, footnote 12 at 1163, 1166, 1167.24 2 O.H.L.J. 508.25 Private International Law, 5th ed. at 402.26 Id. at 391.1965]OSGOODE HALL LAW JOURNALto arise from a view that illegitimate children -that is, childrenborn out of lawful wedlock -are a form of second-class citizens andshould not have the protection of the law that legitimate childrenhave. The question is whether this is a relevant consideration today.While originally only birth in lawful wedlock could prevent the childhaving the stigma of bastardy, today the benefit of legitimation isquite wide. A child can be legitimated by subsequent marriage of hisparents. Does this make the illicit relationship out of which he wasborn any the more respectable? If not, then why should such a childhave all the legal advantages of succession to his father's estate whilethe non-legitimated, but none-the-less natural, son is deprived of thatprotection?In Ontario a child can also, in effect, be legitimated, vis-h-vis hisadopting father, by adoption.27 He becomes "for all purposes of the lawof Ontario" the natural and legitimate child of his adopting parents.This presents another anomaly of our law. A child being adopted mightquite conceivably have been an illegitimate child and likely was astranger in blood to his adopting parents. By adoption he will haveall the benefits of a natural-born legitimate child of those parents, andif his adopting father had an illegitimate child of his own, the adoptedchild would be put in preference to the illegitimate child althoughthe latter was flesh and blood.It is submitted that all forms of classification of children intolegitimate and illegitimate is outmoded and unsuited to the presentstate of social development. This is especially true in view of the cur-rent trend away from any classification of children, as is seen in thepresent state of adoption legislation, whereby any distinction thatexisted in the past between natural children and adopted children hasbeen abolished. In the recent case of Re Blackwel,2s McRuer, C.J.H.C.,as he then was, ably summed up the history of adoption legislationin Ontario and elsewhere. He points out that, prior to 1958:There was a progressive legislative development toward putting theadopted child in substantially the same legal position as a child born inlawful wedlock.This development culminated with the present legislation whereby:This Act did not purport to declare rights but created a legal relationshipfrom which legal rights and legal responsibilities flowed and likewiseit destroyed the legal relationship arising out of the natural birth ofthe child.29This same concept of social justice should be applied to the plightof the "illegitimate" child. There is no valid reason why a personshould be allowed to propagate the human species at will and deprivehis offspring of their personal right by the mere fact that he has notcomplied with the formality of marriage, which in the eyes of the law27 Child Welfare Act, R.S.O. 1960, c. 53, s. 76.28 [1959) O.R 377.29 Id. at 401, 402.[VOL. 3Supreme Court Reviewis all that it is! If the traditional test of legitimacy, birth in lawfulwedlock, has been watered down to its present state, then it mightprofitably be forgotten altogether.The only conscionable excuse for maintaining the present anoma-lous situation is that the stigma of bastardy is some form of deterrentto the prospective father. The fallacy of this is readily apparent - itis very unlikely that any such thought would enter his mind at the onlytime that the deterrent could be operative. It might also be defendedfrom the standpoint of any legitimate children of the testator. But it isillogical that such children should be allowed the benefit of a state ofaffairs with which they had absolutely nothing to do. The time istherefore ripe to complete the spring-cleaning of the law on thismatter with appropriate legislation.CONSTITUTIONAL LAWSimpson Land Co. Ltd. v. Black Contractors Ltd.BRUCE I. MACTAGGART 'NAVIGABLE WATERS - PRIVATE AND PUBLIC RIGHTS IN MAN-MADEINLETS.This decision provides an analysis of the definition of "navigablewater". The facts are as follows: The Crown patent for the lot involvedreserved to the Crown the right to enjoy any navigable water whichmight be found on, or flowing through, the lot in question. The issueraised was whether the owner, after removing sand from his lot insuch a manner as to create a bay, could assert private rights over thewaters in such bay so as to prevent others from sailing across it.The Supreme Court of Canada, affirming the trial judge and theOntario Court of Appeal, held that the owner of the lot could notprevent anyone from sailing across the bay, the waters being properlycharacterized as "navigable," even though he owned the land nowforming the bottom of the bay.In detail the facts are as follows: The defendants, while in thecourse of removing sand from Lot 3 of Grenadier Island, of whichthey eventually became the owners, caused a bay to be formed in thislot about 600 feet in horizontal depth and 545 feet in width at itsmouth. The defendants likewise conducted similar operations on theadjacent lot, Lot 4, creating another bay which opened into the baycreated in Lot 3. When the defendants' lease to remove sand from Lot4 terminated, the plaintiff took up the lease to carry on similar sandremoving operations. The plaintiff asked permission from the defen-*Mr. MacTaggart is a second year student at Osgoode Hall Law School.1965]

Conflict of Laws: Montano v. Sanchez [1964] S.C.R. 317

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2430&amp;context=ohlj

Conflict of Laws: Montano v. Sanchez [1964] S.C.R. 317

Abstract

Similar works

Full text

Available Versions

York University, Osgoode Hall Law School