BURNYEAT J.:-- Pursuant to the provisions of the Estate Administration Act and Rule 10(1)(d) of the Supreme Court Rules, the petitioner seeks a declaration that the petitioner is the lawful heir of Johanna Karoline Viktorine Strachwitz.

Johanna Strachwitz (nee Frohde) was born on October 2, 1907 in Koln, Germany. Her only surviving sibling was her sister Edith Schonknecht who was born January 12, 1910. The petitioner is the daughter of Edith Schonknecht. During 1932, Johanna Frohde met Count Bernhard von Strachwitz and they began a romantic relationship. Johanna Frohde and Bernard von Strachwitz cohabited from August, 1941 until his death. Sometime during the late 1930s or early 1940s, Johanna Frohde started using the name Countess Johanna Strachwitz. Up until the time when her parents died (her father in 1942 and her mother in 1951), Johanna Strachwitz continued to maintain an active parent-child relationship with her parents and an active sibling relationship with her only sister and her daughter, the petitioner.

Bernhard von Strachwitz died on February 6, 1952 at the age of 84. Under his Will dated August 28, 1949, Johanna Strachwitz was his sole heir and, accordingly, she inherited his estate. This history would be somewhat unremarkable and the questions facing the respondent would not be complex if Bernhard von Strachwitz had not adopted Johanna Strachwitz on April 11, 1951 when he was 82 and she was 43.

On July 6, 1938, a new law dealing with marriages came into force in Germany. That law prohibited marriages between persons with a large age difference. Under this law, Bernhard von Strachwitz was prohibited from marrying Johanna Strachwitz. When this law was repealed in 1946, Bernhard von Strachwitz was 78 years of age and Johanna Strachwitz was 39. On April 11, 1951 when Bernhard von Strachwitz adopted Johanna Strachwitz as his daughter, Bernhard von Strachwitz was approximately 83 years old while Johanna Strachwitz was 44 years old. In support of the petition, the affidavit of Dr. Gerhard Schreier from Berlin is filed. I accept him as being an expert on German laws with respect to adoption, marriage, and succession. In his affidavit he states:

In those times in Germany [in the early 1950s], these types of adoption of an adult were a legal construction of legalizing a life partnership of an aristocrat with a person without noble birth.

After Bernhard von Strachwitz died in 1952, Johanna Strachwitz immigrated to Canada. She became a Canadian citizen on March 16, 1959. She died intestate in Victoria, British Columbia, on April 11, 1986. On May 26, 1986, the respondent was granted Letters of Administration of the Estate of Johanna Strachwitz and, as at that date, the estate was valued at $243,935.79. The respondent has administered her estate since that time.

Counsel for the petitioner says that the adoption by Bernhard von Strachwitz of Johanna Strachwitz is contrary to public policy and should not be recognized in British Columbia, that her adoption is not an adoption as contemplated by the Adoption Act, R.S.B.C. 1979, c.4, that her natural sister Edith Schonknecht survived her, that when Edith Schonknecht died on December 19, 1992 she was survived by the petitioner who was her sole heir and that the petitioner is the sole and rightful heir of the whole of the estate of Johanna Strachwitz.

The respondent submits that British Columbia recognizes all foreign adoptions, that the law of British Columbia is that the "natural" family of a person adopted has no claim on the estate of the adopted person and that only the family into which the person is adopted has a claim, and that, if there is a finding that the von Strachwitz family is entitled to the estate, the respondent will undertake further searches to ascertain the rightful heir or heirs within the von Strachwitz family.

The following provisions of the Adoption Act, R.S.B.C. 1979, c.4, were in force in 1986 at the time of the death of Johanna Strachwitz:

3.(1) An adult person, or an adult husband and his adult wife together, may apply to adopt a child under the provisions of this Act. (2) In like manner an adult husband and his wife together may apply to adopt the child of either of them. (3) An adult husband or an adult wife may individually apply to adopt the child of either of them. (4) Notwithstanding any other provision in this Act, a person may apply to adopt an adult person. (5) Where an application is made under subsection (4), the court may make an order for adoption if it is satisfied that (a) the applicant has maintained as his own child the person who is to be adopted from the time the child commenced to live with the applicant until the child became selfsupporting or married or reached the age of majority, whichever is the earliest; (b) the person who is to be adopted and, if he is married, his spouse consent to the adoption; (c) the spouse of the applicant, if any, consents to the adoption; and (d) it is not contrary to the public interest to make the order.

11. (1) For all purposes an adopted child becomes on adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent. (2) For all purposes an adopted child ceases on adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents. (3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2). (4) Subsections (2) and (3) do not apply, for the purposes of the laws relating to incest and to the prohibited degrees of marriage, to remove any persons from a relationship in consanguinity which, but for this section, would have existed between them. (9) For the purpose of this section, "child" includes a person of any age, whether married or unmarried.

12. An adoption effected according to the law of any other province of Canada or of any other country or part of it has the same effect as an adoption under this Act.

The Adoption Act was amended in 1996 with the following provisions substituted for the previous sections 11 and 12:

37. (1) When an adoption order is made, (a) the child becomes the child of the adoptive parents, (b) the adoptive parent becomes the parent of the child, and (c) the birth parents cease to have any parental rights or obligations with respect to the child except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(4) Subsections (1) and (3) do not apply for the purposes of the laws relating to incest and the prohibited degrees of marriage.

. . .

47. An adoption that has, under the law of another province or of a jurisdiction outside Canada, substantially the same effect in that other jurisdiction as an adoption under this Act has the same effect in British Columbia as an adoption under this Act.

Counsel for the respondent provides a number of authorities in support of the proposition that s.11 of the 1979 Act severs all ties of succession on an intestacy between an adopted child and the natural family of the adopted child. As counsel for the petitioner takes no objection to the proposition that British Columbia law applies regarding the estate of Johanna Strachwitz, the respondent says that the von Strachwitz family rather than the natural niece of Johanna Strachwitz should inherit the estate of Johanna Strachwitz.

In Re Jensen (1964), 47 D.L.R. (2d) 630, Branca J. dealt with the question of whether the adopting parents were the legal heirs of an adopted child who died intestate. In an earlier decision (1963), 40 D.L.R. (2d) 469, Collins J. had decided that the same adopted son would inherit the estate of his adopted parents who had also died intestate. At p.632 in his judgment, Branca J. concluded:

Under the provisions ... of the Adoption Act ... an adopted child becomes the child of the adopting parent, and the adopting parents become the parents of the child as if the child had been born to the adopting parents in lawful wedlock, and for all purposes the adopted child ceases in the event of adoption to be the child of his natural parents, and the natural parents cease to be his parents.

The Act really creates an irrebuttable presumption in the event of an adoption that the adopted child was born in lawful wedlock to the adopting parents. He could not under the provisions of our law inherit from the estate of his natural parents, but he does inherit from the estate of his adopted parents as if born to them in lawful wedlock. The adopting parents are in law his father and mother.

In Re Milestone (1958), 15 D.L.R. (2d) 546 (Sask. K.Q.B.), Taylor J. dealt with the question of whether an adopted nephew once removed could receive part of the residue of an estate which was to be held for the nephews and nieces of the testator when one of the nieces had died leaving only her adopted son. The adoption order had been made in the State of Oregon and the court was called upon to interpret the meaning of s.13 of the Saskatchewan Adoption of Children Act which provided:

A person resident out of the province who has been adopted in accordance with the laws of any of the provinces of Canada, shall upon proof of such adoption be entitled to the same rights of succession to property ashes would have had in the province in which he was adopted, save insofar as those rights are in conflict with the provisions of this Act.

Taylor J. found that the adopted child was the only issue of the niece and was therefore entitled to any share or interest to which his adopted mother was entitled under the Will. Despite the fact that the adopting parents and the adopted child were domiciled in the State of Oregon, Taylor J. concluded that the following statement in Dicey's Conflict of Laws, 6th ed., at p.519, applies to the question of the laws governing the question of succession:

The question whether an adopted child can succeed as a child ... under an intestacy ... is (semble) determined by law governing the succession, that is, the law of domicile of the ... intestate at the date of his death in the case of movables.

In Re Canada Permanent Trustco and Assessor and Collector of Probate and Succession Duties (1969), 8 D.L.R. (3d) 569, the British Columbia Court of Appeal dealt with the question of a substantial bequest to the natural child of a testator where the natural child was later adopted by his natural mother and by her second husband. The court dealt with the question of whether, under the Succession Duty Act and for the purposes of determining whether succession duty applied or not, the adopted son could be considered a "child" of the testator or not. In concluding that the beneficiary was not a "child" for the purposes of the Succession Duty Act so that succession duty was payable, the court noted:

It seems to me clear that an adopted child ceases to be the child of his natural parents only from and after the making of the adoption order, leaving unchanged his status as a child of his natural parents from birth to the making of the adoption order. (at p.575)

In Re Oliphant: Oliphant v. Wickson et al (1990), 38 E.T.R. 133 (Sask. Q.B.), Grotsky J. dealt with the question of whether two natural children who were later adopted by their natural mother and her new husband were entitled to share in the estate of their natural father on his intestacy. The natural mother, her new husband and the children were domiciled in British Columbia at the time of the death. Grotsky J. held that, as at the date of the adoption, the two natural children "ceased to be" the children of the deceased and that, accordingly, when they ceased to be his children they also ceased to be for all purposes his issue under The Intestate Succession Act of Saskatchewan. Grotsky J. also adopted the proposition that the question of succession to the movables of a deceased is governed by the law of his or her domicile at that date of his or her death.

The respondent submits that the definitive statement in British Columbia regarding the respective rights of the natural parents and the adopted parents is set out in Mernickle v. Westaway (1986), 22 E.T.R. 213 (B.C.C.A.). In that case, the natural father of the petitioner had died intestate in 1980. The petitioner's mother had been divorced from the deceased in 1957 and, when she subsequently re-married, she and her new husband adopted the petitioner. The petitioner contended that she was the "lawful lineal descendant" of the deceased and that, accordingly, she should be entitled to his estate on his intestacy. The trial judge had held that she could inherit her natural father's estate as the provisions of the Adoption Act did not effect rights of intestate succession. The appeal of that decision was allowed.

Speaking on behalf of the court, Seaton J.A. held that the chambers judge should have followed the decision of Mr. Justice Branca in Re Jensen, supra. Seaton J.A. concluded:

In my view, when subs.(2) [s.22(2)] says that an adopted child ceases on adoption to be the child of his existing parents, it uses the word "child" broadly. I do not think that one who is not the child of a person can be the issue of that person within the Estate Administration Act.I am influenced too in that interpretation by the introductory words "for all purposes". They are broad. The thrust of these provisions is to move the child from one family to another family, and make it a child of the new family and no longer a child of the old family. (at pp.219-220)

The chambers judge had found that the petitioner and her natural father had kept close contact over the years. Seaton J.A. dealt with that as follows:

In the course of his decision he recounted the connections between the petitioner and her father, that they had kept in contact over the years and in all save the legal sense continued to be father and daughter. This is a consideration that I have already said I think irrelevant, but it is not irrelevant if the petitioner chooses to make an application under the Escheat Act,R.S.B.C. 1979, c.111. In my view, if there is to be a remedy it must be under that Act. I would hope that an application will receive sympathetic consideration. (at p.221)

In his concurring judgment, Esson J.A. dealt with the issue of whether a "child" under the Adoption Act continued to be "issue" for the purposes of the Estate Administration Act even after that child had been adopted. He found that not to be the case:

Essentially what is said there is that issue is a word of much wider import than child or children. That is so, at least in some circumstances; the word "issue" can include descendants more remote than a child. But, the fallacy of the reasoning in applying that to the facts of this case in my respectful view, is that it overlooks the fact that here the respondent, if she is to be issue of the late Mr. Hartman, can be so only because she was his child. The Adoption Act makes it clear that on the making of the adoption order she ceases to be his child and, therefore, she ceased also to be issue. (at p.222)

The respondent says that there is nothing in the Adoption Act which would allow the court to take into account "public policy" considerations after there had been a finding that the adoption in Germany was in accordance with the laws in Germany at the time of the adoption in 1951. I should therefore conclude that British Columbia laws as to succession govern and that the petitioner as part of the natural family of the deceased should not share in her estate.

Counsel for the petitioner submits that the adoption in Germany in 1951 is not an adoption as recognized or contemplated by either the 1979 or the 1986 Adoption Acts and therefore the "adoption" is not subject to ss.11 or 37 of those Acts and is not subject to the decision in Mernickle v. Westham. Counsel submits that a foreign adoption is not to be recognized if it is founded on that which is contrary to public policy in British Columbia and that the court has the jurisdiction to withhold recognition of foreign adoptions. The submission is that s.7 (now s.47) of the Adoption Act does not affect the inherent jurisdiction of the court to withhold recognition of a foreign adoption.

Counsel for the petitioner relies upon the decision in Re Valentine's Settlement, [1965] 1 Ch.831 (C.A.), to support the propositions advanced. In that case, the trial judge dealt with a British subject domiciled in Southern Rhodesia who had established a trust fund to pay income to her son during his life and, after his death, the capital and income was to go to his children. The son who was also domiciled in Southern Rhodesia had three children, one child of his marriage and two children adopted in South Africa. By South African law, an adopted child was deemed to be the legitimate child of his adoptive parents and entitled to any property devolving after the date of the adoption. By Rhodesian law, an adoption order could not be made in respect of any child who was not resident or domiciled in Southern Rhodesia at the time of the adoption. At trial, Pennycuick J. held that Southern Rhodesian law should apply so that the two adopted children were not children of the son for the purposes of the settlement and the trust fund. With Salmon L.J. dissenting, the English Court of Appeal dismissed the appeal confirming that the law of Southern Rhodesia should apply.

At pp.841-42, Lord Denning M.R. states:

I start with the proposition stated by James L.J. in Inre Goodman's Trusts [(1881) 17 Ch.D.266 at 297, C.A.]:"The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations. "That was a legitimation case, but the like principle applies to adoption.

But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our course should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v. Holley [[1953] P.246 at 257, C.A.]. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of nations, we should recognise an adoption order made by another country when the adopting parents are domiciled there and the child is resident there.

Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things:(1) it destroys the legal relationship theretofore existing between the child and its natural parents, be illegitimate or illegitimate; (2) it creates the legal relationship of parent and child between the child and its adopting parents, making it their legitimate child. It creates a new status in both, namely, the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parent. You do not look to the domicile of the child: for that has no separate domicile of its own. It takes its parents' domicile. You look to the parents' domicile only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents' domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it. That general principle finds expression in the judgment of Scott L.J. in In re Luck's Settlement Trusts, Walker v. Luck [[1940] Ch.864 at907-908, C.A.]. (emphasis added)

In dealing with the question of the effect of the recognition of a "foreign" adoption, Lord Denning concludes:

In my opinion, when English law recognises a foreign adoption order as conferring the status of a child, it does not give to the child all the self-same rights and benefits of succession as a natural-born child. It only gives the child the self-same rights and benefits as a child adopted in England by an English adoption order..... But I am quite clear that we do not look to the law of succession of the foreign country. If we did, we might find that a foreign-adopted child had greater rights of succession in England than an English-adopted child. Which is absurd. The correct solution is this: the child is to be treated in English law just as if he had been adopted in England, no better and no worse. (at p.844)

Salmon L.J. would have recognized the adoption. In his dissenting judgment, he also recognizes the overriding jurisdiction of the court to reject the adoption:

Adoption - providing that there are proper safeguards -is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents.

The laws of adoption in South Africa are very nearly the same as our own. The principles underlying them are the same. The whole emphasis is upon the welfare of the child and elaborate precautions are laid down for assuring that the adoption order shall not be made unless it is for the benefit of the child; the consent of the natural parent is required. It is difficult to see why in these circumstances, unless compelled to do so, our courts should refuse to recognise these adoption orders made lawfully in South Africa which conferred nothing but benefits on all the parties concerned. (at p.852)

Mr. Templeman, in the course of an exceptionally able argument, emphasised what he described as the danger and absurdity of a childless man and wife being able to go abroad for a short holiday and return the mother and father of three children. It may or may not be absurd but the danger would exist only if the considerations for adoptions in the foreign country concerned were quite alien to our own and our courts were obliged to recognise the adoption whatever the circumstances. This is not so, for it is always open to our courts on grounds of public policy to refuse to recognise a foreign adoption even when the domicile of the adoptive father is impeccable.(at p.854)

Counsel for the petitioner relies upon the phrase "once duly constituted by the law of any civilised country" in the In Re Goodman's Trusts decision quoted by Lord Denning and Lord Denning's phrase "... provided always that there is nothing contrary to public policy is so recognising it" to substantiate the submission he makes on behalf of the petitioner. Counsel also relies on the caveat of Salmon L.J. to the effect that adoptions do not have to be recognized where the considerations for the adoption in the foreign country "were quite alien to our own."

The decision in Re Valentine's Settlement has not been cited in Canadian cases. However, one British Columbia has considered the question of whether all adoptions should be recognized. In the Public Trustee for the Province of British Columbia v. Sueji Chiba (nee Sanmiya) et al, unreported, May 15, 1987, A841262 (Vancouver Registry), Meredith J. dealt with distribution of an estate and the question of whether that estate should go to the natural family of the deceased or to the family of the deceased's former wife's parents. The question was whether a relationship created in Japan amounted to an adoption. Meredith J. concluded that it did not and that the estate would go to the next of kin stemming from the natural parents of the deceased. The facts in that case were described as follows:

Before leaving Japan the deceased married. Under Japanese law and custom to perpetuate their family name he took by registration the surname of his wife's parents. He left no children. His wife divorced him in Japan some years later. He was already in Canada. But no registration of defeasance of the name or the relationship between himself and his wife's parents was registered as it could have been. Presumably those in Japan were not motivated to register a defeasance.

Meredith J. concluded as follows:

By the laws of British Columbia, parents adopting a child become for all intents and purposes the parents of that child. The adopting parents are substituted for the natural parents. The adopting parents undertake the care and upbringing of the child. An adult cannot be adopted unless previously as a child he was in the care of the adopting parents. Adoptions are final and cannot be annulled.

The purposes and effects of adoptions in British Columbia are obviously quite different from the arrangement I have described brought about by marriage in Japan. Common characteristics end with the assumption of the name and rights of inheritance. But the "adopting" parents in Japan, if the arrangement can be termed an adoption at all, having nothing to do with the care and upbringing of a child. The arrangement is brought about whatever the age of the husband, and, as one would expect, can be brought to an end by divorce. (at pp.2-3)

In Cheshire and North's Private International Law, 12th ed., the learned authors discuss the present effect of the English Adoption Act (1976) but state, with regard to the common law position, that recognition of a foreign adoption may be denied on grounds of public policy:

We have seen that the statutory rules relating to the recognition of "overseas adoptions" provide that such an adoption may be denied recognition on grounds of public policy. Public policy is similarly relevant to the recognition of foreign adoptions at common law. Adoption law in other countries may be very different from ours, as with adoption of adults and married persons in the USA. Whilst great caution should be exercised in denying recognition on public policy grounds, the courts have power to do so both in relation to the incidents of the adoption, such as whether the child can succeed to the adoptive parents, and, in an extreme case, to the adoption's effect on the status of the parties, ie as to whether the parent and child relationship has been created at all. (p.769)

The reference to "statutory rules" relates to s.53(2)(a) of the Adoption Act (1976) which provides that the court may:

(a) Order that an overseas adoption for determination shall cease to be valid in Great Britain on the ground that the adoption or determination is contrary to public policy or that the authority which purported to authorize the adoption or make the determination was not competent to entertain the case.

The Canadian author James G. McLeod in The Conflict of Laws, Carswell, 1983, says this about the recognition of foreign adoptions in Canada:

The statutes of all of the Canadian jurisdictions provide that a foreign adoption, if recognized, has the same effect as if it were a local adoption. It is only Manitoba, however, that expressly recognizes that such effects should only be accorded to recognizable foreign adoptions having incidents substantially similar to domestic adoptions. Assuming that the adoption law of the granting country has a similar effect to the adoption law of Manitoba, the foreign adoption will be recognized if the adoption was in accordance with the internal law of the granting country.

The latent conflict emphasized by the Manitoba legislation ought not to be ignored by other local forums. When a foreign order, alleged to be an adoption order, is put forward for recognition, the local court ought not, without more, to accept it as such and recognize it under the broad recognition powers in the Canadian law. The Manitoba statute clearly spells out the policy of the Canadian provinces in general. No broad recognition should be accorded under statute to foreign orders which purport to be "adoptions" where granted unless they are intended to have an effect similar to local adoptions. The term "adoption" is simply a label describing a judicial process the effect of which is succinctly stated in the Manitoba legislation. Whether the foreign order is an "adoption" order within such meaning is a definitional function to be decided in accordance with the concepts of the lex fori, i.e., the incidents of the foreign order should be determined and a conclusion reached by assessing whether such incidents accord with the local forum's definition of adoption. Where the foreign "adoption" does not have the necessary effect but is used in the granting jurisdiction for a limited purpose, i.e., to perpetuate a family name or prevent the breakup of family property, the order should not be considered an adoption within the meaning of the adoption legislation. Rather, the original common law approach of determining whether a child or parent is a"child" or "parent" whenever the particular incident comes into play should be adopted.(at p.753)

As well, Mr. McLeod has the following comments:

Where, however, by the granting law the adoption is not one of general application, as are Canadian adoptions, but one undertaken for a limited purpose, the adoption will only be relevant when the particular purpose arises. An adoption which by the granting law has one effect, such as succession, is not really an adoption within the meaning of the rule. The issue is rather one of construction of wills or statute. To the extent that the adoption is recognizable, the limited effect under the granting law should follow so long as it is not contrary to public policy.

Where the adoption is to promote an immoral or unlawful purpose, the adoption as a whole should not be recognized. Such cases will be extremely rare. More common, perhaps, is the situation where a particular incident of the adoption under local law is offensive on the facts. Difficulties of this type can be overcome by granting to a general foreign adoption the same effect as a local adoption. If the foreign adoption as a whole is tainted, it ought not be recognized at all. Where the adoption is, by the granting law, of limited effect only, the lex fori should give effect to those incidents to long as they do not offend the fundamental public policy of the forum.

Under the Hague Convention on Jurisdiction, Applicable law, and Recognition of Decrees Relating to Adoption, the effect of a recognizable foreign adoption will continue to be regulated by the local forum. Also, under the Convention, recognition will be afforded to all adoptions granted in accordance with the law of a contracting state. (at pp.756)

Dicey, Conflict of Laws, 11th ed., 1993, has the following commentary regarding the question of recognition of a foreign adoption where recognition is contrary to public policy:

Lord Denning M.R. in Re Valentine's Settlement entered one caveat against recognising a foreign adoption, namely, that there must be nothing contrary to public policy in so recognising it. Our Rule does not mention this qualification, because public policy is a necessary reservation in any conflict of laws case. However, it is more than usually important to keep this factor in mind when deciding whether to recognise a foreign adoption, because the laws of some foreign countries differ so widely from English law as to the objects and effects of adoption. Adoption is taken very seriously indeed in this country and is surrounded by all the safeguards which an active social policy can devise. In some other countries it is taken far less seriously and serves quite different objects. If the foreign adoption was designed to promote some immoral or mercenary object, like prostitution or financial gain to the adopter, it is improbable that it would be recognised in England. But, apart from exceptional cases like these, it is submitted that the court should be slow to refuse recognition to a foreign adoption on the ground of public policy merely because the requirements for adoption in the foreign law differ from those of English law. Here again the distinction between recognising the status and giving effect to its result is of vital importance. Public policy may sometimes require that a particular result of a foreign adoption should not be given effect to in England; but public policy should only on the rarest occasions be invoked in order to deny recognition to the status itself. For example, the fact that the foreign law permits the adoption of adults, or permits adoption otherwise than by court order, or does not require that the adopter and the child should live together for atrial period before the order is made, should not prevent the recognition of the status in England. There are, indeed, some American decisions or dicta which deny recognition to foreign adoptions on such grounds; but they have been justly criticised on the ground that they confuse recognition of the status with giving effect to its incidents. If, to take an improbable but striking example, the law of a foreign country allowed a bachelor of twenty-five to adopt a spinster of twenty, an English court might hesitate to give the custody of the girl to her adoptive parent; but that is no reason for not allowing her to succeed to his property on his death intestate. A system of law which is prepared to recognise polygamous marriages and extra-judicial divorces should not be too squeamish about recognising foreign adoptions.(at pp.897-898)

One of the examples given by the learned authors includes a Kentucky order allowing a husband to adopt his wife in order that she might qualify as a "child" under his mother's will: Bedinger v. Graybill's Executor (1957), 32 S.W. 2d, 594. In that case, the Kentucky "adoption" was recognized.

In the possession of the respondent and made available to the petitioner were a number of letters between the deceased and Bernhard von Strachwitz, the deceased and her natural sister and the deceased and her natural mother. Those letters consistently refer to the deceased as "Mrs. von Strachwitz" or "Countess von Strachwitz" and to Bernhard von Strachwitz as being her husband. From the materials filed, I can find that Johanna Strachwitz and Bernhard von Strachwitz were living as husband and wife for somewhere between 15 and 20 years prior to his death in 1952, that her natural sister and mother acknowledged that they were living as husband and wife, that Johanna Strachwitz continued to maintain an active parent/child relationship with her parents until they died, that Johanna Strachwitz continued to maintain an active relationship with her only sister until she died, that her natural sister survived her, that the relationship between Bernhard von Strachwitz and Johanna Strachwitz was never a relationship as between parent and child, that the petitioner is the closest living relative in the "natural" family of Johanna Strachwitz, and that the closest surviving relatives of Bernhard von Strachwitz are cousins three or four times removed.

If the adoption is to be recognized in British Columbia, it is clear that the "natural" family of Johanna Strachwitz can have no claim to her estate. The use of "for all purposes" in s.11 of the 1979 Act means that the natural parents of a child ceased to be the parents of that child and have no further claim to the estate of the child. As all of the assets of Johanna Strachwitz were movables, the law of British Columbia applies and that the 1979 Act which was in effect as at 1986 applies.

Nothing in the 1979 Act eliminates the ability of the court in rare circumstances to find that an adoption should not be recognized on the basis that to do so would be contrary to public policy. While the wording of s.47 of the 1996 Adoption Act makes it clearer that the effect of the adoption in the foreign jurisdiction must be "substantially the same effect" before the adoption will have the same effect as an adoption made under British Columbia legislation, if it had been the intention of the legislation to remove all discretion from the court, the language would have to have been more clearly stated in the 1979 Act. Accordingly, the statements contained within the Re Valentine's Settlement decision to the effect that there must be nothing contrary to public policy if the foreign adoption is to be recognized accurately sets out the law in British Columbia at the time of the death of Johanna Strachwitz in 1986 and sets out the law which is presently in effect.

The 1979 and 1996 Adoption Acts set out the view of the Legislature as to public policy regarding adult adoptions. Under the provisions of s.3(5) of the 1979 Act, an adult adoption is only available if the applicant "has maintained as his own child the person who is to be adopted" and where the court is satisfied that: "... it is not contrary to the public interest to make the order." The 1952 adoption would not have been permitted in British Columbia. There is nothing in the statute to suggest that the Legislature has taken away the jurisdiction of the court to refuse to recognize a foreign adoption of an adult which would not have been permitted under s.3(5) of the 1979 Act.

The court has always been reticent to recognize adoptions where it is clear that the primary intent of the adoption is not to establish a parent child relationship. In Re Raghbeer (1977), 3 R.F.L. (2d) 42, Grossberg Co. Ct. J. dealt with the proposed adoption of the 17 year old sister of a woman who, along with her husband, were resident in Canada. The court found that the proposed adoptee was not a "resident" in Ontario and was therefore not eligible for adoption but also concluded that the adoption was not one which would be recognized in Ontario:

It is manifest that the entry into Canada of Indera was pursuant to a scheme or plan to attempt to have her remain in Canada. The inescapable conclusion from the evidence, and I so find, is that the application for adoption is a sham or ploy for immigration purposes. It is what was described by Cross J. in Re A., ... [1963] 1All E.R. 531 at 534, as in truth an "accommodation" adoption. In that case he refused the application. He held that the object of the application for adoption was to provide British nationality to the person sought to be adopted. (at p.44)

I agree with the submission of counsel for the Director of Child Welfare that this application is not bona fide and is not for the purpose of establishing a genuine parent and child relationship, which is the object of Pt.IV of the Child Welfare Act.

It strains credulity, in this case, to accept that the purpose of the proposed adoption is to create a parent and child relationship. I find on the evidence that there has not been, nor will there be, a true and genuine parent and child relationship. The relationship of sister and sister which exists will continue to exist.

The Child Welfare Act of Ontario should not be abused by a pretended adoption for collateral benefits to circumvent immigration laws and regulations. (at p.45)

At the time of the adoption in Germany, Johanna Strachwitz and Bernhard von Strachwitz had been living as man and wife for 15 to 20 years. While their initial views as to why they chose adoption over marriage might have been affected by a 1938 law, it is clear that this law was repealed in 1946. There was therefore no legal impediment to their marriage other than the suggestion advanced by Dr. Schreier that adoption was a way of "legalizing a life partnership of an aristocrat with a person without nobel birth." Without deciding the question whether of this motive also violates public policy so that a British Columbia court would not recognize a foreign adoption having this purpose, it is clear that there should not be recognition of a foreign adoption where the primary purpose of that adoption was to allow a man and woman living as husband and wife to adopt so that a "father" and "daughter" could then continue to live as husband and wife. That concept is so foreign to British Columbia public policy that this German adoption should not be recognized in British Columbia.

When foreign adoptions are involved, the adopting parents and the adopted children should have the certainty that the adoption will be recognized in British Columbia. It will only be under very rare circumstances that a foreign adoption will not be recognized in British Columbia. This is one of those occasions. Accordingly, there will be a declaration that the petitioner, Margaret Wende, is the lawful and sole heir of Johanna Karoline Viktorine Strachwitz.