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Discrimination Because Of Sexual Orientation
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Is it legal to disinherit someone because of his or her sexual orientation?

Disinheritance & the LGBT Community

A father has disinherited his son because his son is gay. Would an Ontario court set aside the will?

There are those who would argue that in Ontario, testamentary freedom is paramount. That means that, when making his will, the father had every right to be prejudiced, mean, whimsical or even cruel. After all, the argument goes, it’s the father’s money and he can do whatever he wants with it. Why should the law interfere with a person’s will if the law would permit the father to do what he wanted to do with his money during his lifetime? The father could have donated all of his money to charity before dying, or spent it all at the casino. There are many lawyers and academics who take this view. There are others who disagree.

The law can and does intervene in private affairs to prevent certain kinds of discrimination. For instance, as we will discuss below, the Ontario Superior Court recently set aside a charitable trust that was discriminatory on the basis of race, sexuality and philosophical ideology. The court cited a public policy against discrimination in Canada. Advocates for the LGBT community can point to such cases for the argument that an Ontario court should set aside an anti-LGBT will on public policy grounds. But would it?

The goal of this blog is to review the Saskatchewan case of Grams v. Grams Estate, 2015 SKQB 374 and consider it in the Ontario context. In the Grams case, a father allegedly disinherited his son because his son was gay. But this blog is not just about testamentary freedom versus LGBT rights; it is also about how much authority we as Canadians accord to our legislatures and courts to involve themselves in our personal affairs.

LGBT Rights in the Estates Context

Canada has passed laws to eliminate discrimination against the LGBT community in such areas as human rights, relationship recognition and marriage rights. Yet John Fisher writes that discrimination persists in areas such as censorship, criminalization of LGBT sexualities and transgendered rights.1 It may also persist in the context of wills and estates, which some view as being protected by the principle of testamentary freedom.

Testamentary Freedom

In Canada, a person with testamentary capacity is entitled to dispose of his or her property by will in any way that he or she chooses. As the Supreme Court of Canada held in 1902, even people with “wrong-headed notions, capricious whims and absurd idiosyncrasies” can make wills.2 The exercise of a testator’s right of disposition is not subject to supervision by the court.3 Having said that, there are exceptions to this general rule. The scope of these exceptions may depend on which province’s laws apply.

In British Columbia, where a child has been disinherited due to his or her sexual orientation, there is legislation and case law to permit the courts to vary the will. The Wills Variation Act4 (now the Wills, Estates and Succession Act5) and the interesting cases of Patterson v. Lauritsen6 and Peden v. Peden Estate7 are discussed in detail below. In Ontario, the disinherited child will be faced with a more challenging legal landscape.

The Exception for Dependants

A major exception to testamentary freedom in Ontario is dependant’s relief legislation. Ontario’s dependant’s relief legislation may be found in Part V of the Succession Law Reform Act.8 Part V gives the courts in Ontario jurisdiction to alter the distribution of estate assets if the testator failed to make “adequate provision for the proper support of his or her dependants.” If a child is a dependant under the SLRA, the child might be entitled to a “fair share of family wealth” (see Cummings v. Cummings).9 This means that a child who is disinherited over his or her sexual orientation, and who qualifies as a dependant, might still be entitled to a lump-sum out of the estate. But the SLRA does not assist non-dependant children, or say anything about discriminatory wills.

The Human Rights Code

The Ontario Human Rights Code10 does not say anything about discriminatory wills either. It applies to such things as services, goods and facilities, accommodation, the right to contract, employment, vocational associations, and so forth. The limits (and uses) of the Code were explored in the seminal Ontario case of Canada Trust Co. v. Ontario Human Rights Commission,11 more commonly known as Re Leonard’s Trust. In Re Leonard’s Trust, the Ontario Court of Appeal was faced with a charitable trust that created a scholarship for students of the “white race and of the Christian Religion in its Protestant form.” The Ontario Human Rights Commission alleged that this charitable trust was discriminatory with respect to “services and facilities” under the Ontario Human Rights Code.12 The Court of Appeal considered the argument about “services and facilities” and was less than impressed. Instead of relying upon the Human Rights Code, which was silent on the issue of charitable trusts, the court resorted to the more nebulous doctrine of “public policy.”

The Exception for Public Policy (in 1990)

In Re Leonard’s Trust, the Court of Appeal reasoned as follows:

“Public policy is not determined by reference to only one statute or even one province, but is gleaned from a variety of sources, including provincial and federal statutes, official declarations of government policy and the Constitution. The public policy against discrimination is reflected in the anti- discrimination laws of every jurisdiction in Canada.”

It was on this basis that the Court of Appeal decided to modify the charitable trust in Re Leonard’s Trust to remove its discriminatory features. But, importantly, the Court of Appeal was very careful in stating that its decision in Re Leonard’s Trust should not apply to private testamentary dispositions or outright gifts. It was only because Re Leonard’s Trust involved a public charity that the court felt it appropriate to consider public policy. The court quoted the very old adage that “public policy is an unruly horse” and the admonition that public policy “should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does not depend on the idiosyncratic inferences of a few judicial minds.”13 Yet, that was 1990. Today, the unruly horse of public policy seems to be galloping into the private sphere of testamentary bequests.

The Exception for Public Policy (today)

The exception for public policy remains alive and well in the twenty-first century. On February 16, 2016, the Ontario Superior Court made use of the doctrine in deciding a case involving a charitable trust that was discriminatory on the basis of race, marital status, sexual orientation and philosophical ideology. Royal Trust Corp. of Canada v. The University of Western Ontario concerned a charitable trust designed to give bursaries to “Causasian (white) male, single, heterosexual students” and a “hard-working, single, Caucasian white girl who is not a feminist or lesbian.” Madam Justice Alissa Mitchell cited the Re Leonard’s Trust case and stated that she had “no hesitation” in declaring the qualifications of race, marital status, sexual orientation and philosophical ideology void as against public policy (even pointing out the derogatory use of the word “girls” for female candidates). But this result should come as no surprise – the Royal Trust Corp. case involved a charitable trust, just like in Re Leonard’s Trust. The question is whether the public policy doctrine could be used to set aside a will.

Two recent cases appear to have expanded the public policy doctrine in this regard by leaps and bounds.

McCorkill v. McCorkill Estate,14 which was upheld on appeal,15 involved a testamentary disposition to a neo-Nazi, white supremacist group. The court carefully reviewed the law, including Re Leonard’s Trust, and held that the bequest was void as against public policy. Significantly, the court found as a fact that the neo-Nazi group would use the money for purposes contrary to the Criminal Code,16 in particular section 319(2) (hate speech), and that this was a sufficient reason to invoke the doctrine of public policy even in the relatively “private” context of a testamentary bequest. The New Brunswick Court of Appeal upheld the trial judge’s decision.

Spence v. BMO Trust Co.17 went even further than McCorkill. In Spence, the Ontario Superior Court was faced with a will that disinherited one daughter. A key evidentiary issue was the fact that the will did not contain any words to indicate that the daughter had been disinherited for discriminatory reasons. In fact, the will said at paragraph 5(h):

“I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.”

Notwithstanding this statement, the court found as a fact that the testator had disinherited his daughter because she had entered into a relationship with a white man and given birth to a child of mixed race. (The finding has drawn criticism in some circles as it appears to run counter to the rules surrounding the use of extrinsic evidence.) The court reviewed the decisions in Re Leonard’s Trust and McCorkill, then held:

“Does it offend public policy that the deceased’s other daughter, Donna, should receive the entire estate simply because her children were fathered by a black man? That, in my view, offends not only human sensibilities but also public policy.”

The Spence case was appealed to the Ontario Court of Appeal. The appeal was heard and the decision is reserved as of the date of writing. It is anticipated that the decision of the Court of Appeal will be appealed to the Supreme Court of Canada.

Wills that Discriminate on the Basis of Sexual Orientation

The outcome of the Spence appeal will be significant for anyone who has been disinherited on the basis of sexual orientation. If the public policy doctrine can be invoked to set aside a will, the Royal Trust Corp. case gives credence to the idea that it could be used to set aside a will on the ground that it discriminates on the basis of sexual orientation. That seems to be the message from the recent case of Grams v. Grams Estate.

In Grams, the Saskatchewan Court of Queen’s Bench dealt with a claim that an adult child was disinherited on the basis of his sexual orientation. The issue was dealt with in a “first hearing,” which is a procedural step in Saskatchewan wherein the court assesses whether the person challenging the will has a genuine case supported by an evidentiary foundation.

In Grams, the challenger was named Bruce Grams. His principal piece of evidence was a testamentary document that his father Ken Grams had drafted in 2005, nine years prior to Ken’s demise. The document stated: “Bruce Grams should receive $1.00 for all the pleasure his gay lifestyle has brought our family.” The court also considered an allegation Ken had sexually assaulted Bruce and his other children when they were growing up, and that Ken had once assaulted Bruce as an adult. After reviewing the decision in Spence, the Court of Queen’s Bench held as follows:

“My function in Stage 1 is to determine if there is a genuine issue to be tried. In my view, there is a foundation for the argument that a will which ignores a child because of the child’s sexual orientation will be set aside.”

“Bruce has also established the factual basis required by the Stage 1 test to move the challenge on public policy grounds to trial. The allegations of sexual touching by Ken, his later assaults on Bruce and the references in his handwritten will of Bruce receiving ‘…$1.00 (one dollar) for all the pleasure his gay lifestyle has brought to our family’, is evidence that would tend to establish that the reason Ken left Bruce out of the Will was because of his sexual orientation. The Executors have provided some evidence that the reason that both Bruce and his sister, Kathryn, were left out of Ken’s estate was because they sided with their mother in the divorce proceedings. If it is found that Bruce was left out of the Will because of supporting his mother in the divorce proceedings, the public policy challenge will most likely fail. On the other hand, if it is found that Bruce was ignored by Ken in the Will because of his sexual orientation, then the public policy challenge will be debated and this Court will be asked to determine whether, as a matter of law, the Will should be set aside on this ground.”

If the Grams case proceeds to Stage 2 and Bruce is successful, it might be the first case in Canada to set aside a will purely on the basis of the public policy against discrimination on the basis of sexual orientation. The authors use the adjective “purely” because there are already cases decided in British Columbia which have set aside such wills using the Wills Variation Act.

The British Columbian Approach

In B.C., there is legislation giving the courts the following power:

“If a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

(The provision is, in many ways, similar to Part V of the SLRA in Ontario. Indeed, in the Cummings case, the Ontario Court of Appeal followed the Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate,18 despite the fact that Tataryn was decided within the framework of the B.C. Wills Variation Act. The Ontario Court of Appeal held that Tataryn applied in Ontario notwithstanding the somewhat different language in the SLRA. Still, for many years, the courts in B.C. have been more willing to use the discretion afforded to them under legislation to set aside or vary wills.)

In the case of Patterson v. Lauritsen, the B.C. Supreme Court was asked to consider a will that disinherited one child on the basis of his purported homosexuality. The testatrix in that case had divided her estate equally between three out of her four children. In reading the notes of instruction given by the testatrix, the solicitor had noted her reason for disinheriting one child was that “he is living with a homosexual and she thinks that he is a drug addict.” On the issue of the son’s purported homosexuality, the court stated:

“… [A]lthough she was entitled to her own view against the plaintiff’s homosexuality, the fact of homosexuality in today’s society is not a factor which would justify a judicious parent, acting wisely, disinheriting a child.”

The court held that the disinherited son was entitled to an equal share in the mother’s estate.

The next B.C. case dealing with the same issue was Peden v. Peden Estate. In Peden, the testator had three adult sons. Bruce, the youngest, did not receive an outright bequest, but rather a life estate in a trust fund. The court found that Bruce’s gift was “almost close to disinheritance.” The evidence, which was based on the drafting solicitors’ notes, established that the testator initially wanted to disinherit Bruce entirely because he had become aware that Bruce was gay. When the testator’s solicitor told the testator that he would not draft a will to that effect, the testator later told his solicitor to only provide a life estate for Bruce due to his concern that his son’s share of the estate would go to someone outside the Peden family. The court found that it was clear from the evidence of the drafting solicitor that it was Bruce’s lifestyle which caused the testator to dispose of his estate in the fashion that he did. For this and other reasons, the court held that the trust fund should be converted into an outright gift.

Conclusion

The doctrine of testamentary freedom is not absolute. In B.C., it can be overridden by the Wills Variation Act19 (now the Wills, Estates and Succession Act20) and case law such as Patterson v. Lauritsen21 and Peden v. Peden Estate.22 Cases like McCorkill in New Brunswick and Spence in Ontario suggest that it can also be overridden by considerations of public policy. A reading of the Grams case suggests that at least one Saskatchewan court might be willing to set aside an anti-LGBT will on the basis of those same public policy considerations.

Is this a change to be welcomed? Courts in the past have been leery about invoking “public policy” as a basis for interfering with private affairs. After all, one judge’s ideas about public policy might be different from another’s – is it against public policy to leave money to a mistress, a cult or a bizarre political cause? Some argue that by opening the doors to public policy, we invite the judiciary to begin making laws, effectively side-stepping the legislature and democracy. Others say that it has always been part of the judicial function to consider public policy when making decisions. As Justice Abella wrote in 1989: “Considering policy is a function of the court’s legitimate role in legal interpretation, a role necessarily evaluative of policy.”23

You May Also Like:

Those interested in this topic will surely be interested in seeing the decision of the Ontario Court of Appeal in Spence. For further reading, we refer you to these additional sites:

 

Footnotes
  1.   J. Fisher, “Outlaws or In-laws?: Successes and Challenges in the Struggle for LGBT Equality” 49 McGill L.J. 1183.
     
  2.   Skinner v. Farquharson, 1902 CarswellNS 54 (S.C.C.) at para. 1.
     
  3.   Fox v. Fox Estate, 1996 CarswellOnt 317 (S.C.) at para. 20.
     
  4.   Wills Variation Act, R.S.B.C. 1979, c. 435.
     
  5.   Wills, Estates and Succession Act, SBC 2009, c. 13.
     
  6.   Patterson v. Lauritsen, 1984 CarswellBC 381 (S.C.).
     
  7.   Peden v. Peden Estate, 2006 BCSC 1713 (S.C.).
     
  8.   Succession Law Reform Act, R.S.O. 1990, c. S.26.
     
  9.   Cummings v. Cummings (2004) 69 O.R. (3d) 397 (C.A.).
     
  10.   Human Rights Code, R.S.O. 1990, c. H.19.
     
  11.   A very recent example is Bill 137: An Act to amend the Children’s Law Reform Act, the Vital Statistics Act and other Acts with respect to parental recognition, a private bill aimed at recognizing the rights of same-sex parents of children born through assisted human reproduction and birth..
     
  12.   At that time, the predecessor Ontario Human Rights Code, 1981, S.O. 1981, c. 53.
     
  13.   Citing Lord Aitkin in Fender v. Mildmay, (1937) 3 All E.R. 402.
     
  14.   McCorkill v. McCorkill Estate, 2014 NBQB 148 (CanLII).
     
  15.   McCorkill v. McCorkill Estate, 2015 NBCA 50 (CanLII).
     
  16.   Criminal Code, R.S.C. 1985, c. C-46.
     
  17.   Spence v. BMO Trust Co., 2015 ONSC 615 (CanLII).
     
  18.   Tataryn v. Tataryn Estate,(1994) 2 S.C.R. 807.
     
  19.   Wills Variation Act, R.S.B.C. 1979, c. 435.
     
  20.   Wills, Estates and Succession Act, SBC 2009, c. 13.
     
  21.   Patterson v. Lauritsen, 1984 CarswellBC 381 (S.C.).
     
  22.   Peden v. Peden Estate, 2006 BCSC 1713 (S.C.).
     
  23.   R.S. Abella, “Public policy and the judicial role” (1989) McGill L.J.
     

Charles Wagner and Brendan Donovan

The authors of this blog are Charles Wagner and Brendan Donovan. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP and Brendan was a partner.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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