Henry v. Henry Estate et al., 2014 MBCA 84

Citation: Henry v. Henry Estate et al., 2014 MBCA 84 Date: 20140912 Docket: AI 14-30-08129 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : MELVINA GRACE HENRY ) C. R. Huband and ) J. S. Michaels ) for the Appellants (Plaintiff) Respondent ) ) ) P. V.

Walsh, Q.C. - and - ) for the Respondent ) ) LENWORTH HENRY and ) Appeal heard and PEARLITIA WAFER, as Executors of the ) Decision pronounced: Estate of the late ADELAIDE HENRY, ) May 27, 2014 deceased and JOSEPH HENRY ) ) ) Written reasons: (Defendants) Appellants ) September 12, 2014 MONNIN J.A. [ 1 ] The appellants appeal from the motion judge’s determination of the applicable law that should govern the respondent’s claim that she is the daughter of the late Rupert Henry, a citizen of the United Kingdom who died intestate in London, England on February 12, 1999. [ 2 ] The parties agreed in the Manitoba proceeding that the substantive laws of England would govern the establishment of paternity and the procedural laws of Manitoba would govern the procedural aspects of the claim.

The preliminary issue the motion judge was asked to decide by the parties was whether ss. 20(6) , 20(7) and 23 of The Family Maintenance Act, C.C.S.M., c. F20 (the FMA ), are substantive and therefore do not apply to establishing parentage, or are procedural and therefore do apply. The motion judge determined, in her view, these provisions of the FMA were substantive and, therefore, would not apply to the Manitoba proceeding. [ 3 ] The appellants took issue with that finding and sought to have it overturned on appeal.

After hearing the appeal, it was determined, unanimously from the bench, that the appeal should be dismissed. At that time, we indicated that, notwithstanding the able argument of counsel for the appellants, we agreed with the motion judge that these three provisions of the FMA were substantive in nature and therefore did not apply to the action. [ 4 ] I am of the view that the reasoning and conclusions of the motion judge that the provisions in question are substantive, as set out in her thorough and well-written decision, are correct and I would adopt them.

I would therefore dismiss the appeal. [ 5 ] As indicated at the time of the appeal, costs will follow at the usual amount. J.A. I agree: J.A.

BEARD J.A. (concurring) I. THE ISSUE [6] While I agree with Monnin J.A. as to the result, I am of the view that the issues that are raised are significant andrequire an expanded analysis from this court. [7] Melvina has filed a statement of claim in which she alleges that she is the lawful child and sole heir-at-law to the estateof Rupert Henry. There was a preliminary motion to resolve conflict of law questions related to the

interpretation and application of TheFamily Maintenance Act, C.C.S.M., c. F20 (the FMA).

The appellants (collectively, the estate) have appealed the finding of the motionjudge that ss. 20(6), 20(7) and 23 of the FMA are substantive and not procedural in nature, with the result that they do not apply to theclaim. [8] The parties are agreed, as am I, that, given that at the time of his death Rupert was a citizen and a resident of the UnitedKingdom (the U.K.), his estate was located in the U.K. and the claimant to the estate is a resident of the U.K., by the rules of privateinternational law, the substantive laws of the U.K. and the procedural and evidentiary laws of Manitoba should apply to thedetermination of Melvina’s claim.

It is for this reason that it is important to determine whether ss. 20(6), 20(7) and 23 of the FMA areprocedural or substantive in nature. II. THE FACTS [9] The motion judge set out the facts as follows (at paras. 4-6): Rupert died intestate in the United Kingdom (UK) in 1999. [Melvina] alleges that she is Rupert’s child and seeks judgment in theamount of approximately $250,000 (the total value of his estate) on the basis that, as his child, she is entitled to inherit on an intestacy. Rupert’s mother is the late Adelaide Henry (Adelaide) who died on October 27, 2006.

It is common ground that Adelaide’s estate willinherit Rupert’s assets in the event [Melvina] cannot prove that Rupert is her father. The defendants Lenworth and Pearlitia are siblingsof Rupert, children of Adelaide and, as I have said, the executors of Adelaide’s estate. Adelaide’s estate takes the position that, by virtueof the FMA, [Melvina] is barred from establishing that Rupert is her father; in any event, it disputes her assertion that she is Rupert’schild, and hence, her entitlement to the assets of his estate.

The issues of jurisdiction and applicable law arise because Rupert was, and [Melvina] and her mother are all residents of the UK,and Adelaide resided in Jamaica and her will was probated there. The apparent reason for the action having been brought in Manitoba isthat the funds which comprise the only asset of Rupert’s estate are situate in this province. Those funds came to be here through theactions of the defendant Joseph Henry (Joseph), who is a sibling of Rupert, Lenworth and Pearlitia and also a child of Adelaide.

Specifically, on April 5, 2006, a UK court appointed him as the administrator of Rupert’s estate. However, he did not distribute thefunds but rather deposited them into his own bank account in Winnipeg, where he resides. In an earlier action in Manitoba, Adelaide’s estate sued Joseph, as the administrator of Rupert’s estate, for recovery of those funds. Preliminary adjudications were made with respect to the issues of jurisdiction and forum conveniens (Henry Estate v. Henry, 2010MBQB 267 , [2010] M.J.

No. 356 [(QL)]; 261 Man.R. (2d) 26; 2010 MBQB 267, aff’d 2012 MBCA 4 , [2012] M.J.No. 5 [(QL)]; 275 Man.R. (2d) 90; 538 W.A.C. 90; 2012 MBCA 4). After the Court of Appeal rendered its decision, the statement ofclaim in this action was filed.

Thereafter, counsel for Joseph in the earlier action, who is also counsel for [Melvina] in this proceeding,and counsel for Adelaide’s estate agreed that a consent judgment would be entered against Rupert’s estate in the earlier action and thatthe funds that formed Rupert’s estate would be held in trust by counsel for Adelaide’s estate until this action was either resolved oradjudicated by the Manitoba Court of Queen’s Bench. Pursuant to that agreement, the funds are currently held in trust by counsel forAdelaide’s estate. III.

STANDARD OF REVIEW [10] The issue in this case is whether ss. 20(6), 20(7) and 23 of the FMA apply to the determination in Manitoba of whetherMelvina is Rupert’s child. This would appear, at first blush, to be a question of mixed fact and law. The facts, as they relate to this issue,are not contested. On a closer look, the resolution of the issue requires the court to apply the choice of law rules to the statutoryprovisions and will be resolved on the basis of whether, at law, the provisions are substantive or procedural in nature.

This is anextricable question of law and is, therefore, to be determined by applying the standard of review of correctness. (See Housen v.Nikolaisen, 2002 SCC 33 at paras. 31-36, [2002] 2 S.C.R. 235.) IV.

THE MOTION JUDGE’S DECISION [11] While the parties had argued and the motion judge ruled on the question of the jurisdiction of the court to entertain theclaim, her ruling that the court does have jurisdiction has not been appealed and is not before this court. [12] In coming to the conclusion that ss. 20(6), 20(7) and 23 of the FMA were substantive and not procedural, the motionjudge made the following findings: (

i) The language used to describe the legislation does not necessarily make it procedural. She noted that in Tolofson v. Jensen; Lucas(Litigation Guardian of) v. Gagnon, (SCC), [1994] 3 S.C.R. 1022, La Forest J., for the majority, in deciding thatlimitation periods were substantive, adopted the following statement from Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553 at p.

563 (P.C.) (at p. 1071): In their Lordships’ view, an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in everysense a right, even though it arises under

an act which is procedural. It is a right which is not to be taken away by conferring on thestatute a retrospective operation, unless such a construction is unavoidable. [Emphasis added.] (ii) Instead of focussing on the language of the provisions, the focus should be on the purpose and objectives of the provisions. Sheconcluded that the requirement to come within one of the presumptions of s. 23 was a matter of policy, intended to limit thecircumstances in which a claim for support or inheritance on an intestacy could be brought where an alleged father was deceased andcould not defend the proceeding.

It was also intended to provide some level of protection to executors and administrators of estates. Forthis, she relied upon this court’s decisions in Hill v. Marion Estate (1998), (MB CA), 126 Man.R. (2d) 217 at para.16 (C.A.), and Turner v. Irwin Estate, 2003 MBCA 146 at para. 23, 180 Man.R. (2d) 123. [13] Based on these findings, the motion judge concluded that the provisions of the FMA dealing with declarations ofparentage in circumstances where the alleged father is deceased are based on real and important policy considerations.

She thereforefound that, if Melvina were unable to come within the presumptions prescribed by s. 23, she would be barred from establishing parentagedespite evidence that is apparently available about her mother’s relationship with Rupert. She then found that these sections are notsimply procedural rules that will make the machinery of this court run smoothly.

They are substantive and thus inapplicable. [14] Finally, she found support for her conclusion that the provisions were substantive from the following two sources: - Janet Walker, Castel & Walker Canadian Conflict of Laws, 6th ed., (loose-leaf) (Markham: LexisNexis Canada Inc., 2005) vol. 1 (atpara. 6.2): …. The policy considerations reflect the recognition that whenever the court applies its own law instead of the lex causae to an issuethat could affect the outcome of the dispute, it creates a potential incentive to forum shopping.

Accordingly, to minimize the incentive toforum shopping, the court should apply the lex causae whenever this does not impair the adjudicative process. - In Tolofson, La Forest J. adopted the following statement (at pp. 1068-69): …. I think that legislation should be categorized as procedural only if the question is beyond any doubt. If there is any doubt, thedoubt should be resolved by holding that the legislation is substantive. V. THE POSITIONS OF THE PARTIES The Appellants’ Position [15] The estate’s position that

Part II of the FMA is procedural in nature is encapsulated in its factum as follows: The provisions of

Part II of [the] FMA, and in particular s. 19 through 23 constitute the road-map which is to be followed inestablishing the right of inheritance. Those provisions are the procedural and evidentiary steps that must be followed. …. [16] It relies on comments made by this court in Hill and Turner in support of its argument. It refers in particular to a quotefrom Hill regarding certain provisions in

Part II as “[creating] a process for recognizing a person’s status as the child of a particularperson and, in certain circumstances, to bar the making of a declaration of paternity after the alleged father’s death” (at para. 15).

Itargues that the court distinguished between an inheritance right, which is substantive, and the means or process to attain that right, whichis procedural. [17] It also argues that a review of ss. 19-23 shows that they are “overloaded with provisions on evidentiary matters” such asobtaining blood tests and the consequences of a refusal to provide a sample. [18] It goes on to argue that it is well settled that the nature of the remedy is also regarded as procedural law and that thenature of the remedy is clearly set out in ss. 19-23 of the FMA. [19] Finally, it argues that laws determining what evidence must be furnished to enable an order to be made is also procedural,and it points out that s. 23 of the FMA says what evidence must be furnished to make a declaration, being a form of order.

It concludesthat “the provisions of the FMA do not take away inheritance rights, but they do prescribe the evidence which must be adduced before adeclaration can be made.” [20] In addition to arguing that ss. 19-23 are procedural in nature, the estate also argues that they are clearly not substantive innature.

Its position is that they do not define a substantive legal right but, instead, prescribe and regulate the mode by which a legal rightis enforced. [21] On the motion judge’s finding that s. 23 of the FMA is a matter of policy and, consequently, not procedural, the estateargues that a procedural law does not cease to be so just because it promotes a particular policy. It points out, as an example, that many

procedural court rules have important policy considerations, but they do not thereby cease to be procedural.

The Respondent’s Position [ 22 ] Melvina argues that this court’s decisions in Hill and Turner are of no assistance in the determination of the issues in this case because there was no private international law aspect to those decisions and those courts were not determining whether any legislative provisions were substantive or procedural as those terms are used in relation to private international law and conflict of law issues. [ 23 ] Her position is that Manitoba has no connection to this case but for the fact that the only estate asset is located here and, as a result, it is only the law of the United Kingdom and not that of Canada that should be considered.

She argues that the only procedural aspect to this case is in relation to the determination of the jurisdiction of Manitoba to entertain the claim, and, on that issue, the parties are in agreement. She points out that that issue is not before this court. VI. THE LEGISLATION [ 24 ] In Manitoba, paternity is determined by the application of

Part II of the FMA , the relevant provisions being ss. 17 , 20(1) , 20(6) , 20(7) and 23 : Person is child of parents 17 For all purposes of the law of Manitoba a person is the child of his parents, and his status as their child is independent of whether he is born inside or outside marriage.

Declaration 20(1) Subject to subsection (7), any person having an interest may apply to the court for a declaratory order that a man is or is not in law the father of a child whether born or unborn and notice of the application shall be served forthwith on the Director of Child and Family Services appointed under The Child and Family Services Act [C.C.S.M., c. C80]. Order during lives of parent and child 20(6) Subject to subsection (7), a declaration of parentage under this Part shall not be made unless the person and the child whose relationship is sought to be established are living.

Exception if presumption 20(7) Where only the father or the child is living, a declaratory order that a man is in law the father of a child may be made under this

section if circumstances exist that give rise to a presumption of paternity under

section 23 . Presumption of paternity 23 Unless the contrary is proved on the balance of probabilities, and subject to

section 34 a man shall be presumed to be the father of a child in one or more of the following circumstances: (

a) He was married to the mother at the time of the child’s birth. (

b) He was married to the mother by a marriage that was terminated by (

i) death or judgment of nullity that occurred within 300 days or such longer period as the court may allow, before the birth of the child; or (ii) divorce where the decree nisi or divorce judgment was granted within 300 days, or such longer period as the court may allow, before the birth of the child. (

c) He married the mother after the child’s birth and acknowledged that he is the father. (

d) He and the mother have acknowledged in writing that he is the father of the child. (

e) He was cohabiting with the mother in a relationship of some permanence at the time of the child’s birth or the child was born

within 300 days, or such longer period as the court may allow, after the cohabitation ceased. (

f) He has been found or recognized by a court to be the father of the child. VII.

ANALYSIS The Law [25] In Tolofson, La Forest J., writing for the majority, stated as follows regarding the characterization of laws as substantiveor procedural when determining the choice of law between jurisdictions (pp. 1067-69): In any action involving the application of a foreign law the characterization of rules of law as substantive or procedural is crucialfor, as Cheshire and North, Cheshire and North’s Private International Law (12th ed. 1992), at pp. 74-75, state: One of the eternal truths of every system of private international law is that a distinction must be made between substance and procedure,between right and remedy.

The substantive rights of the parties to an action may be governed by a foreign law, but all mattersappertaining to procedure are governed exclusively by the law of the forum. The reason for the distinction is that the forum court cannot be expected to apply every procedural rule of the foreign state whose law itwishes to apply. The forum’s procedural rules exist for the convenience of the court, and forum judges understand them. They aid theforum court to “administer [its] machinery as distinguished from its product” (Poyser v. Minors (1881), 7 Q.B.D. 329, at p. 333, per LushL.J.).

Although clearcut categorization has frequently been attempted, differentiating between what is a part of the court’s machinery andwhat is irrevocably linked to the product is not always easy or straightforward.

The legal realist Walter Cook has commented (TheLogical and Legal Bases of the Conflict of Laws (1942), at p. 166): If we admit that the ‘substantive’ shades off by imperceptible degrees into the ‘procedural’, and that the ‘line’ between them does not‘exist’, to be discovered merely by logic and analysis, but is rather to be drawn so as best to carry out our purpose, we see that ourproblem resolves itself substantially into this: How far can the court of the forum go in applying the rules taken from the foreign systemof law without unduly hindering or inconveniencing itself?

This pragmatic approach is illustrated by Block Bros. Realty Ltd. v. Mollard (1981), (BC CA), 122 D.L.R. (3d)323 (B.C.C.A.). In that case the issue was whether the requirement of s. 37 of the Real Estate Act, R.S.B.C. 1979, c. 356, that a realestate agent be licensed in British Columbia, should be categorized as procedural or substantive. The parties had executed a real estatelisting agreement in Alberta for land situated in British Columbia. The plaintiff, an agent licensed in Alberta, sold the land to Albertaresidents. The defendant vendor failed or refused to pay the commission.

The plaintiff sued in British Columbia. The lex causae wasAlberta. The defendant pleaded that the British Columbia licensing requirement was procedural. The court, however, ruled that it wassubstantive, notwithstanding that the

section read: “A person shall not maintain an action ...”, language traditionally relied on for afinding that a statute is procedural because it purported to extinguish the remedy, but not the right. The court expressly relied on policyreasons for its decision. It stated at pp. 327-28: If, however, the contract is governed by the law of Alberta and if the contract is valid under the law of Alberta, the characterization of s.37 as procedural would deprive the plaintiff of the opportunity to enforce his legal rights in a British Columbia Court.

The only purposeof s. 37 is to enforce the licensing sections, and it should be examined in this context. I think that legislation should be categorized asprocedural only if the question is beyond any doubt. If there is any doubt, the doubt should be resolved by holding that the legislation issubstantive. This approach makes sense to me. .... [26] Thus, on the question of whether a law is substantive or procedural, the majority in Tolofson endorsed the position thatthe courts should take a pragmatic position, and, if it is uncertain, it should be categorized as substantive rather than procedural.

[ 27 ] On determining whether a law is substantive or procedural, Castel states as follows (at para. 6.2): “Procedure” has been described as the “mode of proceeding by which a legal right is enforced as distinguished from the law which gives or defines the right, and which by means of the proceeding the court is to administer, the machinery as distinguished from the product.” In other words, procedure pertains to the methods of presenting to a court the operative facts upon which legal relations depend.

It is primarily concerned with the machinery for enforcing a right by action in the courts and it has been held to include, inter alia , the form of the action, the parties to the action, the determination of the proper court, the rules of practice and pleadings, questions of evidence and the execution of foreign or domestic judgments. . . . . . The characterization of a particular rule, whether foreign or domestic, as substantive or procedural, cannot be done in the abstract because substance and procedure are not clear-cut or unalterable categories.

The solution depends upon the objectives to be achieved by the court in the case that is pending before it and the general objectives of the conflict of laws. Practical and policy considerations seem to prevail over any strict definitional test. With respect to the practical considerations, the court must follow certain basic procedural rules for the orderly adjudication of the matter and the resolution of the dispute. The court will not apply any rule of the lex causae that would impair its process.

The policy considerations reflect the recognition that whenever the court applies its own law instead of the lex causae to an issue that could affect the outcome of the dispute, it creates a potential incentive to forum shopping.

Accordingly, to minimize the incentive to forum shopping, the court should apply the lex causae whenever this does not impair the adjudicative process. [ 28 ] The text goes on to address laws affecting rights versus those affecting remedies (at para. 6.2): Canadian courts once held that whatever relates to the remedy employed is procedural and whatever relates to the rights of the parties is substantive. This distinction was often unhelpful as it was still necessary to determine whether the foreign or domestic rule related to the right or to the remedy.

To decide whether a rule is substantive or procedural one must analyze the specific questions calling for decision as well as their legal background and factual context. For example, statutory provisions affecting the right to claim damages are not necessarily procedural by reason of their relation to the availability of a remedy. [ 29 ] On statutory provisions affecting the nature of the remedy, Castel states (at para. 6.3(d)): .... It is apparent, then, that not all questions of remedy are purely procedural.

A remedy might be predicated on and serve to vindicate a substantive right and granting or denying it affects the recognition of the right. Where right and remedy are indissolubly connected, both should be considered substantive and governed by the appropriate law irrespective of the lex fori characterization for domestic purposes. [ 30 ] Also relevant is the issue of the categorization of legal presumptions. On this issue, Castel states (at para. 6.3(c)): .... Irrebuttable presumptions of law, such as a presumption of survivorship, are matters of substance for the lex causae .

It is uncertain whether rebuttable presumptions of law, such as the presumption of marriage, are matters of substance, and so governed by the lex causae , or matters of procedure and so governed by the lex fori . To the extent that the presumption is a fixed stipulation of certain facts which is designed to foster specified social policies, it will likely be regarded as substantive.

To the extent that the presumption is primarily a means to assist the court in the fact-finding process and it is not intended to determine the findings the court will make, it is likely to be regarded as procedural. [emphasis added] [ 31 ] Finally, there is the question of the categorization of a limitation period.

This is addressed in Castel as follows (at para. 6.3(h)): Until recently, in many common law countries a local or foreign statute of limitation that operated merely to bar the plaintiff’s remedy was considered to be procedural, whereas a local or foreign statute of limitation that operated to extinguish the plaintiff’s right was held to be substantive. However, characterization based solely on the language of the statute made little sense.

This approach tended to encourage forum shopping and to undermine the certainty with which the governing law struck the balance between the rights and obligations of persons who might choose to bring claims and those who might be required to respond to them. …. . . . . . In its 1994 decision in Tolofson v. Jensen , the Supreme Court of Canada also rejected the traditional approach and held that foreign statutes of limitation are to be regarded as part of the substantive law.

No longer is it necessary to rely on the wording of the relevant statutory provision to determine whether it extinguishes the right or bars the remedy. Following this common law development, a plaintiff cannot invoke the limitation period of the forum to permit litigation to proceed in spite of the fact that it would be time barred under the lex causae . While, in provinces that have not legislated to the contrary, Canadian courts now apply the limitations law of the lex causae , this does not entirely eliminate the need to consider the distinction between substance and procedure. ....

In most situations, [the matters that are likely to be regarded as substantive] are [those] likely to be regarded as integral features of the rights and obligations between the

parties that are properly subject to the balance struck by the applicable law. [ 32 ] The following principles can be taken from these authorities: - There is no clear dividing line between what is procedural and what is substantive; therefore, the determination cannot be made in the abstract but, rather, must be made by weighing the objectives to be achieved by the court in the case that is pending before it and the general objectives of the conflict of laws. - Laws enacted for the purpose of ensuring the orderly adjudication of a matter and the resolution of the dispute are generally procedural – they promote the presentation of the facts to the court, sometimes referred to as the machinery for enforcing a right by an action in the courts, and to facilitate the adjudication process. - Whenever the court applies its own law instead of the lex causae to an issue that could affect the outcome of the dispute, it creates a potential incentive to forum shopping.

Accordingly, to minimize the incentive to forum shopping, the court should apply the lex causae whenever this does not impair the adjudicative process. - While historically the courts have held that laws that granted rights were substantive while those dealing with remedies were procedural, it is now the case that not all questions of remedy are purely procedural.

Where right and remedy are indissolubly connected, both should be considered substantive and governed by the appropriate law irrespective of the lex fori characterization for domestic purposes. - To the extent that a rebuttable presumption is a fixed stipulation of certain facts which is designed to foster specified social policies, it will be regarded as substantive.

To the extent that the presumption is primarily a means to assist the court in the fact-finding process and it is not intended to determine the findings the court will make, it is likely to be regarded as procedural. - Historically, the common law dictated that a statute of limitation that merely barred the plaintiff’s remedy was considered to be procedural, whereas one that extinguished the plaintiff’s right was held to be substantive.

In Tolofson , the Supreme Court of Canada held that foreign statutes of limitation are to be regarded as part of the substantive law, with the result that, generally, matters regarded as integral features of the rights and obligations between the parties that are properly subject to the balance struck by the applicable law (the lex causae ) are substantive in nature. [ 33 ] The overriding premise is that, to the extent possible, the courts should avoid a system of categorization between procedure and substance that encourages forum shopping.

To this end, the historical practice of categorizing a law as either procedural or substantive based solely on the nature of the law (right vs. remedy; rebuttable presumption; limitation of action; etc.) has, in many instances, been replaced by a practice that states that the courts should apply the lex causae whenever this does not impair the adjudicative process. As is explained in Castel (at para. 6.2): As a matter of policy it would seem desirable to restrict the scope of the procedural definition so as not to frustrate the fundamental purposes of the conflict of laws.

The test should be: is the foreign rule too inconvenient to apply? If the answer is “no” the foreign rule is substantive. In other words, the distinction should be drawn between cases where the court may conveniently apply foreign legal rules and others where it would be seriously hindered by having to conduct and resolve the trial in an unfamiliar manner. If the foreign law can be applied without such hindrance, it should be characterized as substantive.

Application to the Facts of This Case [ 34 ] In this case, while the parties have agreed that the substantive law of the United Kingdom applies regarding both intestate succession and the determination of parentage, they made no submissions either to the motion judge or to this court as to what that law is or how it might differ from Manitoba law.

As the motion judge stated, they indicated that they had not obtained a legal opinion regarding the applicable substantive law because of the cost involved. (See para. 26.) Thus, it is not possible to make any comparisons between the effect on the trial process of the laws at issue in Manitoba and the laws in the United Kingdom, or to determine whether the application of the laws in the United Kingdom would act as a hindrance to the trial process in Manitoba. [ 35 ] The estate has relied heavily on comments made by this court in Hill and Turner regarding the “process” for determining paternity as indicative that ss. 19 - 23 are procedural and not substantive.

Neither of those cases dealt with principles of private international law or with the categorization of laws as either substantive or procedural. Thus, they are of little, if any, assistance on this issue. [ 36 ] The estate argues that ss. 19-23 are a road map of the process for obtaining a declaration of paternity and they are, therefore, procedural. This is the type of abstract categorization that Castel rejects. (See para. 27 herein.) While some of the provisions are clearly procedural (i.e., s. 20(2) regarding an application by the Director of Child and Family Services), that does not mean that all are.

Each must be considered separately. Further, I agree with the motion judge’s statement that “the language used to describe legislation does not necessarily make it procedural” (at para. 39). [ 37 ] The estate stated that “there are the specific circumstances enumerated under s. 23, all of which describes [ sic ] the factual material that will lead to a presumption of paternity.” It is not correct to say that s. 23 describes factual material. Rather, it sets out a number of circumstances which, if proven and not rebutted, constitute a presumption of paternity.

While each is factual in that it is a fact to be proved, that does not make it evidentiary in nature, as suggested by the estate. Rather, they are rebuttable presumptions. [ 38 ] To be procedural, rebuttable presumptions must be primarily “a means to assist the court in the fact-finding process” and not be intended “to determine the findings the court will make” (at para. 30 herein). The presumptions in s. 23 are not intended

“primarily [as] a means to assist the court in the fact-finding process,” and they are clearly intended to “determine the findings [that] the court will make” given that, if the plaintiff fails to prove any of the presumptions, the court must find against him or her and refuse to make the declaration. This would indicate that the presumptions are not procedural in nature. The presumptions are “fixed stipulation[s] of certain facts which [are] designed to foster specific social policies” (at para. 30 herein), which policies are explained in para. 12(ii) herein.

This indicates that they are substantive in nature. [ 39 ] The estate further argues that ss. 19-23 set out the nature of the remedy that is available and that the law regarding nature of the remedy is procedural. I do not agree that a finding that a provision relates to a remedy necessarily means that it is procedural in nature.

As was stated in Castel, “a remedy might be predicated on and serve to vindicate a substantive right and granting or denying it affects the recognition of the right” and “where right and remedy are indissolubly connected, both should be considered substantive” (at para. 29 herein). [ 40 ] A declaration of parentage is, in many cases, the only way for a person to establish his or her status as the lawful child of the parents (or as the parent of a child) and, without such a declaration, it will be impossible to either establish the status or enforce the rights that flow from the status.

In other words, the declaration of parentage serves to vindicate or establish the recognition of the status. Thus, the right to the status and the remedy of a declaration of that status are indissolubly connected, making them both substantive. [ 41 ] The motion judge correctly looked to the purpose and objectives of the statutory provisions to assist with the determination of whether those provisions were enacted for the convenience of the court to administer its machinery or were part of the product. (See para. 25 herein.) She concluded as follows (at paras. 41, 43): ....

In my view, the requirement to come within one of the presumptions prescribed by s. 23 is a matter of policy, intended to limit the circumstances in which a claim for support or inheritance on an intestacy can be brought where the alleged father is deceased and cannot defend the proceeding. Moreover, it is intended to provide some level of protection to executors and administrators of estates. .... In all, I conclude that the provisions of the FMA dealing with declarations of parentage in circumstances where the alleged father is deceased are based on real and important policy considerations.

And in this case, for the reasons outlined earlier, these sections may be determinative of the rights of the plaintiff. That is, if the plaintiff is unable to come within the presumptions prescribed by s. 23 , she will be barred from establishing parentage, despite evidence that is apparently available about her mother’s relationship with Rupert. These sections are not simply procedural rules that will make the machinery of this court run smoothly.

They are substantive and thus inapplicable. [ 42 ] The estate argues that this reasoning is in error because many procedural provisions have important policy considerations, but that does not mean that they cease to be procedural in nature. It then refers, by way of example, to the important policies attached to Queen’s Bench Rule 31.10(1) regarding the discovery of a non-party and Rule 49 regarding offers of settlement and costs. While I agree with its statement that these rules have enormous public policy considerations, they are clearly intended to make the machinery of the court run smoothly.

Neither of them affects the right at issue in an action or bars a plaintiff from establishing that right. [ 43 ] I would agree that the fact that a law promotes an important policy is not determinative of whether it is procedural or substantive. One must, however, look to the purpose of the law, including the policy for which it was enacted, to assist in determining whether it is substantive or procedural – i.e., whether it relates to the machinery or the product. The policy underlying ss. 20(6) , 20(7) and 23 supports a finding that those provisions relate to the “product,” that is the right that is at issue.

The policy underlying the rules to which the estate referred indicates that those rules relate to the machinery of the process and not to the rights at issue in an action. [ 44 ] Thus, I would find that the motion judge was correct in her determination that ss. 20(6) , 20(7) and 23 of the FMA are substantive in nature and, therefore, do not apply to this action. [ 45 ] The motion judge referred to there being two issues before her.

The first was whether ss. 20(6) , 20(7) and 23 of the FMA applied only to an application for a declaration of parentage under the FMA or also in the context of an estate action where a finding of parentage is sought. If the answer was yes, the second issue was whether they would apply in this case, where the applicable substantive law governing a determination of parentage was that of the United Kingdom and not Canada. The motion judge found that the provisions were, themselves, substantive and, therefore, did not apply. As a result, she did not have to resolve the first question.

Given that I agree with her decision on the second issue, it is not necessary to consider the first issue. VIII. DECISION [ 46 ] For the above reasons, I would find that the motion judge was correct in finding that ss. 20(6) , 20(7) and 23 of the FMA are substantive in nature and, as a result, they are inapplicable to Melvina’s claim that she is the lawful child of Rupert and the sole heir- at-law of his estate. As indicated at the appeal hearing, I would dismiss the appeal with costs to Melvina. J.A.