 |
| Kimberly Gale |
 |
| Palak Mahajan |
Legal fiction
Under the common law, children conceived but not yet born have the same rights as born children. As discussed in Fitzsimonds v. Royal Insurance Company of Canada, [1984] A.J. No. 2559, a fiction has developed in the law that in respect of property rights, an unborn child who is subsequently born alive is in the same position as a child living at the time of death of the benefactor. This fiction has existed for over a century and is so well established that for a statute conferring property rights on children to be interpreted as excluding a child who was en ventre sa mere at the time of the death of the testator would require specific words of exclusion.
wildpixel: ISTOCKPHOTO.COM
The fiction is stated by Lord Justice John Fletcher-Moulton in Schofield v. Orrell Colliery Company, Limited, [1909] 1 K.B. 178 at p. 182:
The House of Lords in Villar v. Gilbey (1907 A.C. 139) decided that, when it is for the benefit of the child, a children venture sa mère is taken to be born. Of course an unborn child is not born — it is not an existing person in the ordinary sense of the word. All our statutes are, of course, framed in language suitable to the case of existing persons, and thus the peculiar fiction of law by which a non-existent person is to be taken as existing is not provided for in their language; therefore, you can always shew that the language of a statute does not fit the case of the unborn. But that is not the way to consider the language of statutes when you are dealing with cases in which the law has given the same rights to a non-existent child as to an existing child. The true way of interpreting the language of a statute in such a case is to assume that the child is born, and then to draw deduction in the same way as we should in the case of an existing person. Now, assuming that this child had in fact been born, I have no hesitation in drawing from the facts of this case the conclusion that as soon as he was born, he would have been dependent on the earnings of the deceased. I am obliged to put in words ‘would have been’ instead of ‘was’, not because I am enlarging the operation of the statute, but because I am applying it to a case whereby a legal fiction a non-existent child is treated as existing.
Lord Atkinson in Villar v. Gilbey (1907 A.C. 139) in commenting on the rule said at para. 151, “The same rule prevails in other systems of jurisprudence.” He then proceeds to state what that rule was, namely:
That the fiction or indulgence of the law which treats the unborn child as actually born applies only for the purpose of enabling the unborn child to take a benefit which if born it would be entitled to, and it is limited to cases where de commodis ipsius partus quaeritur.
…
I cannot concur in the contention that Lord Westbury’s judgment in Blasson v. Blassonis not a decision on the point involved in this case. In my opinion it is a direct decision that, for the purpose of ascertaining the period of distribution of a fund, the words ‘born and living at the time of my decease’ do not include a child in utero, but that for the purpose of ascertaining who is to participate in the gift they do include such a child, since it is for its benefit to be included.
Succession Law Reform Act
The Succession Law Reform Act R.S.O. 1990, c. S.26 (SLRA) codifies the en ventre sa mere doctrine.
Section 1(1) defines a child as including “a child conceived before and born alive after the parent’s death.” Clause 3 of ss. 1.1(1) requires that the posthumously conceived child be born no later than the third anniversary of the deceased person’s death, subject to the granting of an extension under ss. 1.1(3) by the court. An extension may be granted in “appropriate circumstances.”
The question of what are “appropriate circumstances” and what is a reasonable extension will be dependent on the facts of each case. Therefore, this has the tendency to create some uncertainty in the administration of estates.
Section 46(9), dealing with intestate succession, provides that for the purposes of determining kinship, descendants and relatives “conceived before and born after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived him or her.”
The SLRA is now also applicable to children conceived after the death of the deceased, through artificial insemination. However, this article is not extended to children born through artificial insemination and, therefore, is not being discussed in length.
This is the first in an ongoing series. Read the second article: The succession rights of unborn children: Under a will.
Kimberly Gale specializes in estate litigation and elder advocacy, while also offering mediation services through her boutique law firm, Gale Law, located at 330 Bay St. She has honed her advocacy in a variety of settings and is a fierce advocate for her clients, leading her to be nominated for Litigator of the Year at the Canadian Law Awards 2024. She also founded a not-for-profit organization called NCA Network, which is a diversity and inclusion group catered to internationally trained lawyers living in Ontario. Gale serves as secretary for the OBA’s Elder Law Section, advocating for senior’s rights and completed her LL.M. in Dispute Resolution at Osgoode Hall Professional Development. Palak Mahajan is a dual-licensed lawyer (India and Ontario) with over five years of experience in dispute resolution and litigation in India and over one year of experience in estate litigation in Ontario. She has been registered with the Bar Council of India since 2016 and has completed her L.L.M. from Osgoode Hall Law School, York University. Mahajan is also the Outreach and Events manager with the NCA Network, a diversity and inclusion group.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437-828-6772.