Strong v. Marshall Estate

Strong v. Marshall Estate Court Court of Appeal Date 2009-03-17 Citation 2009 NSCA 25 Docket CA 272017 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); MacDonald, J. Michael (Honourable Chief Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Strong v. Marshall Estate - 2009 NSCA 25 - 2009-03-17 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Strong v. Marshall Estate, 2009 NSCA 25 Date: 20090317 Docket: CA 272017 Registry: Halifax Between: Patricia Strong Appellant v. The Estate of Gladys Goldie Marshall and The Attorney General of Nova Scotia Respondents Judges: MacDonald, C.J.N.S.; Roscoe and Fichaud, JJ.A. Appeal Heard: January 21 and 22, 2009, Halifax, Nova Scotia Held: Appeal is dismissed per reasons for judgment of Fichaud, J.A.; MacDonald, C.J.N.S. and Roscoe, J.A. concurring. Counsel: G. Bernard Conway, for the appellant Bruce Gillis, Q.C., for the respondent Estate Alexander Cameron, for the respondent AGNS Eric Sturk for the nieces and nephews of Ms. Marshall Reasons for judgment: [1] Ms. Strong was adopted soon after birth. Her birth mother has died intestate, and Ms. Strong wishes to share the distribution of the estate. The first issue is whether Nova Scotia’s adoption legislation excludes an adoptee from status as her birth parents’ “issue” for intestate succession. If so, does that adoption legislation infringe the adoptee’s rights under ss. 15(1) or 7 of the Charter of Rights? Background [2] The parties' Agreed Statement of Facts, filed for the proceeding in the Supreme Court of Nova Scotia, includes the following: (a) Ms. Gladys Goldie Marshall was born on September 8, 1923 at Bridgetown, Annapolis County. She lived in Bridgetown all her life, and never married. (b) Ms. Marshall had ten siblings. Four died without children. Two sisters had a child out of wedlock. The agreed statement of facts names the surviving descendants of the siblings of Gladys Goldie Marshall. For the issues on appeal it is unnecessary to list their names. (c) Ms. Marshall had one child out of wedlock, Marie Ann Marshall, born on July 29, 1950 in Annapolis County. Marie Ann was placed for adoption. On August 18, 1952 an order for adoption declared her to be the adopted daughter of Joseph Alfred Pothier and his wife Antoinette Delvina Pothier of Wilmot Station, Annapolis County. The order changed the child's name to Patricia Ann Pothier. (d) Patricia Ann Pothier is now an adult, married, and lives in western Canada. Her name is Patricia Strong, the appellant in this appeal. (e) Gladys Goldie Marshall died intestate at Middleton on January 20, 2000. On April 12, 2000 the Supreme Court of Nova Scotia granted a certificate of her estate’s administration to her sister, Gertrude Muriel Farrell. Ms. Farrell died on March 1, 2005 and was succeeded as administrator by her son Douglas Farrell (“Administrator”) of Gladys Goldie Marshall's estate (“Estate”). [3] On November 1, 2005, the Administrator applied to the Supreme Court of Nova Scotia for direction whether Ms. Strong was an heir of Ms. Marshall. Justice Haliburton heard the matter. Ms. Strong, represented by counsel, submitted that she is entitled to distribution under Nova Scotia’s intestate succession legislation. The judge issued a written decision on August 31, 2006 (2006 NSSC 38) ruling that Ms. Strong's adoption precluded her claim against her birth mother’s Estate. Ms. Strong then applied for an order that the legislation which precluded her claim against the Estate violated ss. 7 and 15(1) of the Charter of Rights. Justice Haliburton issued a second decision on March 28, 2008 (2008 NSSC 93) dismissing Ms. Strong's Charter challenge. Later I will discuss the judge's reasons. [4] Ms. Strong appeals both rulings to the Court of Appeal. The Estate took no position on the contested issues. The nieces and nephews of the late Ms. Marshall, through counsel, actively responded to the appeal. The Attorney General of Nova Scotia responded to Ms. Strong's Charter challenges. Issues and Standard of Review [5] The issues are whether the judge erred by ruling that: (1) because of ss. 80(1) and 82 of the Children and Family Services Act, SNS 1990, c. 5 (“CFSA”) Ms. Strong was not "issue" of the late Ms. Marshall under s. 2(b) of the Intestate Succession Act RSNS 1989, as amended; (2) ss. 80(1)(a) and (b) and 82 of the CFSA do not violate s. 15(1) of the Charter; and (3) ss. 80(1)(a) and (b) and 82 of the CFSA do not violate s. 7 of the Charter. [6] There was an agreed statement of facts. For the legal issues, either statutory interpretation on the first issue or constitutional on the second and third, the standard of review is correctness. First Issue- Is Ms. Strong "issue" under the Intestate Succession Act? [7] Before discussing the judge's ruling, I will review the legislative history. [8] Ms. Strong was adopted on August 18, 1952. The Adoption Act SNS 1952, c. 2 (“1952 Adoption Act”) revised the prior adoption legislation in RSNS 1923, c. 139 as later amended. Section 10 of the 1952 Adoption Act repeated s. 7 of the 1923 Act respecting succession rights after adoption: 10 (1) As to succession to property, a person adopted in accordance with this Act shall in case of intestacy take the same share of property of the parent by adoption that he would take if born to such parent in lawful wedlock, and he shall stand in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if born to such parent in lawful wedlock. (2) If a person adopted dies intestate, his property, acquired by himself or by gift or inheritance from his parent by adoption or from the kindred of such parent, shall be distributed among the persons who would have been his kindred if he had been born to such a parent in lawful wedlock; and property received by gift or inheritance from his natural parents or kindred shall be distributed in the same manner as if no act of adoption had taken place. (3) No person by being adopted loses his right to inherit from natural parents or kindred. [9] The adoption order of the County Court on August 18, 1952 said: . . . IT IS HEREBY ORDERED, ADJUDGED AND DECREED that . . . Marie Anne Marshall is hereby declared as and from the date of this Order to be the adopted daughter of the said Petitioners, with all rights and privileges accruing to the said Petitioners and to the said Marie Anne Marshall respectively, as is by the law made and provided; AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that (except as regards succession to property) all rights, duties, responsibilities and other legal consequences of the natural relations of child and parent, including settlement, shall from the date of this Order exist between the said Marie Anne Marshall and the Petitioners and their kindred and shall, except as regards marriage, incest or cohabitation, terminate between the said Marie Anne Marshall and her natural parents and kindred any and previous adoptive parent. [10] As of Ms. Strong’s 1952 adoption, the adoption order would have incorporated the principles in ss. 10(2) and (3) that preserve the adopted child's "right to inherit from natural parents". [11] In 1967 the Legislature enacted new adoption legislation by SNS 1967, c. 2, that then became the Adoption Act in RSNS 1967, c. 2 ("1967 Adoption Act"). Sections 10(1) and (2) said: 10 (1) For all purposes, upon the adoption order being made, (a) the person adopted becomes the child of the adopting parent and the adopted persons as if the person adopted had been born in lawful wedlock to the adopting parent; and (b) except as provided in subsection (4) of Section 2, the person adopted ceases to be the child of the person who was his parent before the adoption order was made, and that person ceases to be the parent of the adopted person and any wardship or right of custody of the adopted person shall cease. (2) The relationship to one another of all persons, whether the adopted person, the adopting parent, the kindred of the adopting parent, the parent before the making of the adoption order, the kindred of that parent, or any other person, shall be determined in accordance with subsection (1). Section 2(4), mentioned in s. 10(1)(b), refers to an adoption application where the applicant's spouse is the natural parent, and has no bearing here. Later (¶ 37-38) I will discuss the purpose of the 1967 legislation. [12] Section 12 of the 1967 Adoption Act said: 12 Sections 10 and 11 shall apply to all orders for adoption made in Nova Scotia, whether before or after the coming into force of the Sections but not so as to divest any interest in property that has vested at the coming into force of the Sections. Section 12 meant that the future succession rights of the prior adoptee, such as Ms. Strong, were governed by s. 10 of the 1967 Adoption Act, notwithstanding s.10 of the 1952 Adoption Act. [13] The judge interpreted s.10 of the 1967 Adoption Act to mean: 12...It is clear that the 1967 version enhances the status of the adopted person as a member of the new family while entirely abolishing their status vis-a-vis their natural birth parents. [14] The 1967 Adoption Act was replaced by ss. 67-87 of the CFSA in 1990. The CFSA includes the following provisions: Interpretation of Sections 67 and 87 67 (1) In this Section and Sections 68 to 87, (d) “father” of a child means the biological father of the child except where the child is adopted and in such case means, subject to subsection (4) of Section 72, the father by adoption; (e) “mother” means the biological mother of the child except where the child is adopted and in such case means, subject to subsection (4) of Section 72, the mother by adoption; . . . Adoption order 78 (1) Where the court is satisfied (a) as to the ages and identities of the parties; (b) that every person whose consent is necessary and has not been dispensed with has given consent freely, understanding its nature and effect and, in the case of a parent, understanding that its effect is to deprive the parent permanently of all parental rights; and (c) that the adoption is proper and in the best interests of the person to be adopted, the court shall make an order granting the application to adopt. . . . Effect of adoption order 80 (1) For all purposes, upon the adoption order being made, (a) The adopted person becomes the child of the adopting parents and the adopting parents become the father and mother of the adopted person as if the adopted person had been born in lawful wedlock to the adopting parents; and (b) except as provided in subsection (4) of Section 72, the adopted person ceases to be the child of the persons who were the adopted person’s father and mother before the adoption order was made and those persons cease to be the parents of the adopted person, and any care and custody or right of custody of the adopted person ceases. Relationships (2) The relationship to one another of all persons, whether the adopted person, the adopting parents, the kindred of the adopting parents, the father and mother before the making of the adoption order, the \kindred of those parents and the father and mother or any other person, shall be determined in accordance with subsection (1). Subsections (1) and (2) do not apply (3) Subsections (1) and (2) do not apply for the purpose of the laws relating to incest and prohibited degrees of kindred for marriage to remove any person from a relationship in consanguinity that, but for this Section, would have existed. “child” or “issue” (4) In any enactment, conveyance, trust, settlement, devise, bequest or other instrument, “child” or “issue” or the equivalent of either includes an adopted child unless the contrary plainly appears by the terms of the enactment or instrument. . . . Application of Sections 80 and 81 82 Sections 80 and 81 apply to all orders for adoption made in the Province, whether before, on or after the first day of August, 1967, but not so as to divest any interest in property that has vested on or before the first day of August, 1967. [15] Section 82 of the CFSA means that s. 80 applies to adoptions before or after August 1, 1967 for property not yet vested by August 1, 1967. So Ms. Strong's rights in this appeal are governed by s. 80 of the CFSA, notwithstanding s. 10 of the 1952 Adoption Act that was in force when she was adopted. I will return shortly to the judge's interpretation of s. 80. [16] By SNS 2005, c. 15, s. 7, the Legislature added s. 78A to the CFSA, providing for an "openness agreement": 78A (1) For the purpose of this Section, “openness agreement” means an agreement for the purpose of facilitating communication with or maintaining a relationship with a child between an adopting parent or an adoptive parent and (a) a relative of the child; (b) an adopting parent or adoptive parent of a sibling of the child; or (c) a person who has established a relationship with the child. (2) An openness agreement may (a) only be made if consent to the adoption is given by (i) The parent, or (ii) the guardian who placed the child for adoption; and (b) include a process to resolve disputes arising under the agreement. (3) Where a child that is the subject of an openness agreement is (a) twelve years of age or older, the child’s views must be taken into account before an agreement is made; and (b) less than twelve years of age, the child’s views must, where it is appropriate, be taken into account before an agreement is made. (4) An openness agreement does not affect the legal status of an order for adoption. I refer to s. 78A because it might bear on one of the Charter issues that I will discuss later (¶ 47). [17] As Ms. Marshall died intestate, the devolution is governed by the Intestate Succession Act, RSNS 1989, c 236. Section 4(7) says: If an intestate dies leaving issue, the intestate's estate shall be distributed, subject to the right of the surviving spouse, if any, per stirpes among the issue. Section 16 says: For the purposes of this Act, an illegitimate child shall be treated as if the child were the legitimate child of the child's mother or father. Section 2(b) says: In this Act...'issue' includes all lawful lineal descendants of the ancestor. [18] Subject to the effect of s. 80 of the CFSA, Ms. Strong, as a lineal descendent of Ms. Marshall, would be entitled to distribution by s. 4(7) of the Intestate Succession Act. The question is how s. 80 interacts with s. 4(7). [19] The judge ruled that s. 80 prevailed and barred an adoptee’s inheritance from the birth parent. He relied on the opening words of s. 80(1), that "for all purposes" the adopted child becomes the child of the adopted parents and ceases to be the child of the birth parents. The judge followed the decisions in Huston v. Ash and Webster and Public Trustee of Manitoba, [1985] 2 WWR 634, 15 DLR (4th) 469 (MCA) at ¶ 11, Mernickle v. Hartman Estate (1986), 25 DLR (4th) 758 (BCCA), Trombley Estate v. Rachow (1988), 67 OR (2d) 35 (OSC), at ¶ 12, Re Matthews Estate (1992), 1 Alta. LR (3d) 198 (QB) at ¶ 13, and Benefield v. Hrenko Estate, 2001 ABQB 242 at ¶ 22. [20] I agree with the judge's analysis. [21] Section 80(2) of the CFSA prescribes that the relationships among "all persons, whether the adopted person, ... the father and mother before the making of the adoption order ... or any other person, shall be determined in accordance with subsection (1)". Then s. 80(1) provides that "for all purposes" the adoptee is the "child of the adopting parents" and, with an exception not relevant here, "ceases to be the child" of the birth parents. The words "for all purposes" in my view include the purposes of the Intestate Succession Act. This is consistent with s. 80(4) of the CFSA that "[i]n any enactment ... 'child' or 'issue' ... includes an adopted child" unless the enactment plainly discloses the contrary. Section 80 as a whole embodies a legislative intent that, unless expressly contradicted by another statute, for all purposes including intestate succession the adoptee has one and only one set of parents, namely the adopting parents. [22] I am aware that in Hart v. Hart Estate (1993), 124 NSR (2d) 333 (SC), at ¶ 11, the Supreme Court of Nova Scotia said: The words “For all purposes” [in s. 80(1) of the CFSA] must refer to the rights, privileges and obligations delineated in the Children and Family Services Act. In my view the statute does not extinguish an adoptive child's right to inherit from his natural parents or ancestors. Hart was not appealed to this court. This comment from Hart induced the Administrator of Ms. Marshall's Estate to notify Ms. Strong of her possible interest, leading in turn to this proceeding. [23] I respectfully disagree with the quoted passage from Hart. To say that "for all purposes" in s. 80(1) refers only to the matters "delineated in the Children and Family Services Act" understates the plenary impact of adoption under the CFSA. The adoption’s effect is not limited only to the adoptee’s activities that are enumerated in the CFSA. The CFSA does not enumerate activities because “for all purposes” in s. 80(1) is all-encompassing. Adoption opens the adoptee's passage through life to diverse legal terrain governed by all manner of laws. Later (¶ 37) I will refer to the evidence of the legislative history that preceded the 1967 amendment which then became s. 80(1) of the CFSA. It appears that the 1967 amendment did target the rules of inheritance. [24] In my view, the judge correctly concluded that, subject to the Charter issues I will discuss next, s. 80 of the CFSA precluded Ms. Strong's claim against her birth mother’s Estate. Second Issue- Do ss. 80(1)(a) and (b) and 82 of the CFSA violate Section 15(1) of the Charter? [25] Section 15(1) of the Charter says: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [26] In Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, at ¶ 88, the Supreme Court said: Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries: (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? [27] In R. v. Kapp, 2008 SCC 41, at ¶ 17, Chief Justice McLachlin and Justice Abella restated Law's three inquiries as two tests: 17 The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, established in essence a two‑part test for showing discrimination under s. 15(1): (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same. [28] Sections 80(1)(a) and (b) and 82 of the CFSA preclude an adoptee's intestate succession from her birth parents. A non-adopted child is not so precluded. Ms. Strong says this is differential treatment under the law based on adopted status, which Ms. Strong submits is an analogous ground under s. 15(1). [29] In Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, Justices McLachlin and Bastarache for the majority stated the criteria to identify an analogous ground: 13 What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 – race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit‑based decision making. See also Boulter v. Nova Scotia Power Corporation, 2009 NSCA 17 at ¶ 34-35 and cases there cited. [30] Under Corbiere, adopted status is analogous if it is a personal characteristic that is either (1) actually immutable or (2) constructively immutable because it is changeable only at unacceptable cost to personal identity or, put differently, the government has no legitimate interest in expecting the individual to change. [31] In my view, adopted status is a personal characteristic that is actually immutable. Adopted status is as personal as marital status, an analogous ground under s. 15(1): Miron v. Trudel, [1995] 2 S.C.R. 418. An individual can no more change her adopted status than, for instance, her national origin. I accept that adopted status is analogous under s. 15(1). [32] An adoptee is prevented by the CFSA from inheriting the intestate estate of her birth parents. A non-adopted child is not so precluded. This is a distinction under the law based on an analogous ground under Kapp’s first test. [33] The Attorney General cites authorities for the proposition that adoption is not analogous because adoption legislation does not perpetuate disadvantage and stereotyping: McNeil v. MacDougal, [1999] A.J. No. 1449 (S.C.) at ¶ 47-57; McCrea v. Bain Estate, 2004 BCSC 208 at ¶ 90-95. In my view, this factor is more appropriately considered under Kapp’s second test that I will come to next. [34] Under Kapp’s second test, the issue is whether the distinction “create[s] a disadvantage by perpetuating prejudice or stereotyping”. [35] In Kapp, 2008 SCC 41 Chief Justice McLachlin and Justice Abella reiterated, with some synthesis and adjustment, Law’s criteria for discrimination under s. 15(1): 18 In Andrews, McIntyre J. viewed discriminatory impact through the lens of two concepts: (1) the perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds; and (2) stereotyping on the basis of these grounds that results in a decision that does not correspond to a claimant's or group's actual circumstances and characteristics. Andrews, for example, was decided on the second of these concepts; it was held that the prohibition against non‑citizens practising law was based on a stereotype that non‑citizens could not properly discharge the responsibilities of a lawyer in British Columbia ‑ a view that denied non‑citizens a privilege, not on the basis of their merits and capabilities, but on the basis of what the Royal Commission Report on Equality in Employment (1984), referred to as "attributed rather than actual characteristics" (p. 2). Additionally, McIntyre J. emphasized that a finding of discrimination might be grounded in the fact that the impact of a particular law or program was to perpetuate the disadvantage of a group defined by enumerated or analogous s. 15 grounds. In this context, he said (at p. 174): I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. 19 A decade later, in Law, this Court suggested that discrimination should be defined in terms of the impact of the law or program on the "human dignity" of members of the claimant group, having regard to four contextual factors: (1) pre‑existing disadvantage, if any, of the claimant group; (2) degree of correspondence between the differential treatment and the claimant group's reality; (3) whether the law or program has an ameliorative purpose or effect; and (4) the nature of the interest affected (paras. 62‑75). 20 The achievement of Law was its success in unifying what had become, since Andrews, a division in this Court's approach to s. 15. Law accomplished this by reiterating and confirming Andrews' interpretation of s. 15 as a guarantee of substantive, and not just formal, equality. Moreover, Law made an important contribution to our understanding of the conceptual underpinnings of substantive equality. 21 At the same time, several difficulties have arisen from the attempt in Law to employ human dignity as a legal test. There can be no doubt that human dignity is an essential value underlying the s. 15 equality guarantee. In fact, the protection of all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity. As Dickson C.J. said in R. v. Oakes, [1986] 1 S.C.R. 103: The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. [p. 136] 22 But as critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. Criticism has also accrued for the way Law has allowed the formalism of some of the Court's post‑Andrews jurisprudence to resurface in the form of an artificial comparator analysis focussed on treating likes alike. 23 The analysis in a particular case, as Law itself recognizes, more usefully focuses on the factors that identify impact amounting to discrimination. The four factors cited in Law are based on and relate to the identification in Andrews of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination. Pre‑existing disadvantage and the nature of the interest affected (factors one and four in Law) go to perpetuation of disadvantage and prejudice, while the second factor deals with stereotyping. The ameliorative purpose or effect of a law or program (the third factor in Law) goes to whether the purpose is remedial within the meaning of s. 15(2). (We would suggest, without deciding here, that the third Law factor might also be relevant to the question under s. 15(1) as to whether the effect of the law or program is to perpetuate disadvantage.) 24 Viewed in this way, Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews ‑ combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping. [emphasis added] [36] Ms. Strong's factum addresses discrimination under s. 15(1) as follows: 30. The evidence before Justice Haliburton details the historic differential treatment of adopted persons. Although ameliorative purposes underpinned the amendments to the Revised Adoption Act and the current CFS, the fact remains that adopted persons are treated differently than non-adopted persons. This is evidenced by the fact that the legislature enacted legislation (the Adoption Information Act) to address the continuing differential treatment suffered by adopted persons. 31. In the present case, Strong’s differential treatment (inability to inherit) is discrimination. Justice Haliburton’s failure to make that determination for the reasons contained herein is a reverseable error in law. Other than acknowledging that the legislative purpose is ameliorative, this submission does not address the criteria for either Kapp’s second test or Law’s third inquiry respecting discrimination under s. 15. [37] At this point it is useful to consider the purpose of the amendments in the 1967 Adoption Act (above ¶ 11-13) that later became ss. 80(1) and 82 of the CFSA. Justice Haliburton' s decision on the Charter challenge (2008 NSSC 93) referred to the evidence and said: [10] The Materials filed provide extensive evidence of the legislature’s purpose and of the social context surrounding these changes. The evidence supports the proposition that the legislators had a clear understanding of the import of the legislation, it’s [sic] impact on inheritance or succession, and accepted the view of experts that it would advance the interests of adopted persons. I am advised the amendment was introduced in the legislative session of 1966, was “hoisted”, and subsequently reintroduced and passed in the session of 1967. Appendix B to the Affidavit of Gordon D. Hebb, Q.C., Chief Legislative Counsel of Nova Scotia, is a copy of the explanatory notes furnished to the legislature in connection with Bill 23 containing the amendments in question. It describes Clause 10: “This clause deals with the effect of an adoption order and incorporates a substantial change. Under the present Act an adopted child is explicitly excluded from collateral inheritance through his adopting parents but retains his right to inheritance from his natural parents or kindred. This clause would in effect place the adopted child in the same position in all respects as the natural child of the adopting parents and would terminate his legal relationship with his natural parents or kindred.” [11] Attached to the Affidavit of Mr. Hebb as Appendix C is a draft of the proposed Adoption Act. P.J.T. O’Hearn was a highly respected County Court Judge and had been a prominent member of the legal community in Nova Scotia for a number of years. His draft statute was essentially the same as that adopted and he attached explanatory notes. His notes referring to s.10 include the following: Section 10 makes a change (that) . . . is in substance the same provision that is in effect in British Columbia and Ontario. This change has been recommended by the Brief of the Department of Welfare, by the various Welfare bodies in the Province and by the Nova Scotia Barristers’ Society for many years. Under the present Nova Scotia legislation an adopted child is almost the child of his adoptive parents for all purposes, but he is explicitly excluded from collateral inheritance. And on the other hand he retains his right of inheritance from his natural parents or kindred. Each of these provisions serves to create a difference between the adoptive child and the natural child which is condemned universally by professional sociologists. The right of inheritance from natural parents is a chimera. The deprivation of inheritance from collaterals can be a real cause of division but the real evil of the present law is that it may require the renewal of relationships that it is the purpose of the legislation in general to sever and keep severed and this can have quite a traumatic effect on the personality of the individual involved. It also complicates the laws of property and inheritance for no useful purpose. The 1967 legislation eliminated both the adoptee's vague connection with her birth parents for inheritance and her concomitant dissociation with collateral inheritance from her adopted family. This ambiguity, as to connections with kindred, had hindered the adoptee's integration into what was to be her true family. After 1967 the adoptee was treated the same as the natural children of the adopted parents. [Justice Haliburton’s emphasis] [38] The 1967 amendment aimed to support and sustain adoptees. It repealed both the inheritance from birth parents and the concomitant barrier to inheritance from the collateral adopted family. By clarifying this kinship ambiguity, the 1967 legislation better integrated the adoptee into her life family and treated the adoptee equivalently to birth children of the adopting parents. The 1967 amendment, reiterated in ss. 80(1)(a) and (b) and 82 of the CFSA, does not perpetuate a disadvantage, embody a prejudice or reflect a stereotype of adoptees. It does not promote the view that the adoptee is less worthy or less deserving of concern, respect and consideration. It is not discriminatory under s. 15(1) according to Kapp's synthesized approach and Law's contextual factors. To the contrary, it is ameliorative for adoptees, an analogous group, and is therefore protected by s. 15(2) of the Charter from a challenge under s. 15(1): Kapp at ¶ 41. [39] Sections 80(1)(a) and (b) and 82 of the CFSA do not violate s. 15(1) of the Charter. I would dismiss this ground of appeal. Third Issue - Do ss. 80(1)(a) and (b) and 82 of the CFSA violate s. 7 of the Charter? [40] Section 7 says: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [41] Ms. Strong relies on life and security of the person. She does not cite liberty. Her counsel acknowledged in the Court of Appeal and in the Supreme Court of Nova Scotia that s.7 does not protect property rights. In this respect see: Gosselin v. Québec (Attorney General), [2002] 4 SCR 429 at ¶ 77-8 per McLachlin, C.J. for the majority; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, at p. 1003 per Dickson C.J.; Hogg, Constitutional Law of Canada (5th ed. Supp.) ¶ 47.9. [42] Ms. Strong’s factum says that the adoption obstructed access to her birth family's medical and personal history, which might place her life at risk, impair her ability to manage her life and threaten her security of the person. [43] There are three problems with this submission. [44] First there is not a word of evidence that Ms. Strong has ever wanted, needed, requested, or has been frustrated in an attempt to obtain information about her medical and personal history. Neither is there any evidence what personal information, medical or other, Ms. Strong says will sustain her life and security of the person, or whether her access to that information is restricted. Nor is there evidence on these topics for any other adoptee. Ms. Strong's submission is entirely hypothetical and, accordingly, the judge dismissed her claim as having failed to satisfy her burden of proof. [45] There must be a factual foundation, based on evidence, for a Charter claim. In Danson v. Ontario (Attorney General), [1990] 2 SCR 1086, at pp.1099-1101, Justice Sopinka for the Court discussed the point and said (p. 1101): In general, any Charter challenge based on allegations of unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred. To similar effect: Mackay v. Manitoba, [1989] 2 SCR 357, at pp. 360-66 per Cory, J. for the Court; R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713, at pp. 762, 767-8 per Dickson, C.J. [46] Ms. Strong has not satisfied her burden to adduce evidence that supports her claim that she was deprived of life or security of the person. Without evidence the court should not undertake sterile analysis. [47] The second problem with Ms. Strong's s. 7 claim is that it ignores the Adoption Information Act, SNS 1996, c. 3. This statute establishes the process, including an appeal, by which an adoptee may seek the type of information that Ms. Strong’s counsel hypothetically cites to support the submission about life and security of the person. Ms. Strong has made no request for information under the Adoption Information Act. Neither has she challenged the adequacy of that statute under s. 7. Sections 80(1)(a) and (b) and 82 of the CFSA, that are challenged, do not discuss access to personal information. Section 78A of the CFSA, dealing with “openness agreements” (above ¶ 16), touches the issue, but s. 78A is not challenged in this proceeding. [48] The third problem is that Ms. Strong's requested remedy is to be declared an "issue" of the late Ms. Marshall under the Intestate Succession Act, so Ms. Strong may share the distribution of Ms. Marshall's estate. Ms. Strong’s degree of entitlement to personal information about her birth parentage, even if s. 7of the Charter afforded a legal conduit, does not connect to her requested remedy. If she was entitled to better information about her birth parents, the remedy would not be a declaration that ss. 80(1)(a) and (b) and 82 of the CFSA are unconstitutional and that Ms. Strong is "issue" of Ms. Marshall under the Intestate Succession Act. [49] For those reasons I dismiss the ground of appeal related to s. 7 of the Charter. It is unnecessary to comment whether or not any inadequacy of access to personal information, had that allegation been grounded in evidence, would deny life or security of the person under s. 7. Neither is it necessary to discuss the principles of fundamental justice. Conclusion [50] I would dismiss the appeal. [51] The Attorney General does not seek costs. Ms. Strong's claim was precipitated by a notice from the Administrator that she may have an interest in the Estate of Ms. Marshall. At the appeal hearing, counsel for the Administrator, for the nieces and nephews and for Ms. Strong agreed that those parties’solicitor client costs of the appeal should be paid by the Estate, and I would so direct for the costs in the Court of Appeal. This proceeding was to clarify the legal entitlements so that the Administrator could administer the Estate. So it is appropriate that the Estate pay the costs: Re Buckton, [1907] 2 Ch. 406, pp. 414-15; Smith v. Michelin North America (Canada) Inc., 2008 NSCA 107, at ¶ 71. The Supreme Court judge reserved the matter of costs related to the Supreme Court litigation, and I would remit the Supreme Court costs issue to the Supreme Court judge. Fichaud J.A. Concurred in: MacDonald, C.J.N.S. Roscoe, J.A.