Court File and Parties
Date: 2014-12-01
Toronto Registry No.: DFO 14 11502 B1
Ontario Court of Justice
Between:
Elizabeth Perri Applicant
— And —
Francesco Perri Respondent
Before: Justice Ellen B. Murray
Reasons for decision on: 1 December 2014
Counsel:
- Dennis Apostolides, counsel for the applicant mother
- Louis Mostyn, counsel for the respondent father (moving party)
Decision
[1] JUSTICE E.B. MURRAY:— Elizabeth Perri and Francesco Perri were married on 7 September 2013, and separated on 17 December 2013. There is one child of their marriage, born on 7 June 2014. After the child was born, Elizabeth registered his birth under the Vital Statistics Act, R.S.O. 1990, c. V-4, as amended, and chose the name "Michael Vincent Schiavone" for him. "Schiavone" is Elizabeth's maiden name. She has reverted to the use of that name for most purposes.
[2] After the separation but before the child's birth, Elizabeth commenced an application in this court seeking prenatal expenses, spousal support and custody of and support for the child to be born. Elizabeth and Francesco entered into a separation agreement on 4 June 2014, just a few days before the child's birth. They each had counsel. The agreement recited that it was a full and final settlement of all issues arising out of their relationship, and provided, inter alia, as set out below:
- Elizabeth shall notify Francesco within 7 days of the child's birth of his/her particulars, including the child's name.
- Elizabeth will have custody of the child.
- Francesco shall have access to the child. During the first year, access shall be supervised at Access for Parents and Children in Ontario (APCO), and thereafter access shall be as agreed by the parents.
- Francesco shall pay child support pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended.
[3] After Elizabeth's lawyer advised Francesco's lawyer of the child's name, Francesco advised through his lawyer that he wished to have a paternity test performed, and took the position that the child's surname should be registered as "Perri", as the parties were still legally married. Elizabeth replied through her lawyer that the statute permitted her to select the child's name unilaterally, and that the agreement did not provide otherwise.
[4] Francesco now brings a motion asking for an order under the Vital Statistics Act providing that the child's surname be legally changed to "Perri-Schiavone". He has chosen not to proceed with his request for paternity testing. The motion was argued on the basis that, for the purpose of the motion, Elizabeth acknowledges that Francesco is Michael's biological father. Elizabeth opposes the order sought.
[5] In my view, there is a question as to whether the Family Law Act, R.S.O. 1990, c. F-3, as amended, permits parties in a separation agreement to determine the issues of custody of and access to a child who is not yet born. However, as nothing on the motion before me turns on the validity of the agreement, I do not pursue this issue.
The Act
[6] The provisions of the Vital Statistics Act relevant to this motion are set out below.
Section 9 — Certification of birth:
(1) The mother and father, or either of them, in such circumstances as may be prescribed, or such other person as may be prescribed, shall certify the birth in Ontario of a child in the manner, within the time and to the person prescribed by the regulations. S.O. 1994, c. 27, s. 102(5).
Section 10 — Child's name:
(1) A child whose birth is certified under section 9 shall be given at least one forename, subject to subsection (2), and a surname. R.S.O. 1990, c. V.4, s. 10(1).
(3) How child's surname determined — A child's surname shall be determined as follows:
If both parents certify the child's birth, they may agree to give the child either parent's surname or former surname or a surname consisting of one surname or former surname of each parent, hyphenated or combined.
If both parents certify the child's birth but do not agree on the child's surname, the child shall be given:
- i. the parents' surname, if they have the same surname, or
- ii. a surname consisting of both parents' surnames hyphenated or combined in alphabetical order, if they have different surnames.
If one parent certifies the child's birth and the other parent is incapable by reason of illness or death, the parent who certifies the birth may give the child either parent's surname or former surname or a surname consisting of one surname or former surname of each parent, hyphenated or combined.
If the mother certifies the child's birth and the father is unknown to or unacknowledged by her, she may give the child her surname or former surname.
If a person who is not the child's parent certifies the child's birth, the child shall be given:
- i. the parents' surname, if they have the same surname,
- ii. a surname consisting of both parents' surnames hyphenated or combined in alphabetical order, if they have different surnames, or
- iii. if only one parent is known, that parent's surname. R.S.O. 1990, c. V.4, s. 10(3); S.O. 1994, c. 27, s. 102(6).
Analysis
[7] Francesco relies upon subparagraph 10(3) ¶2.ii of the Act on this motion. That section is inapplicable in this case, as Elizabeth and Francesco did not register the child's birth together; Elizabeth alone registered the birth. However, Francesco argues that the order he seeks can still be made, if I find that it was "incorrect and unreasonable" for Elizabeth to refuse to acknowledge Francesco as Michael's father for the purpose of registration and naming.
[8] Elizabeth says that paragraph 10(3) ¶4 of the Act is applicable here and that, because she did not acknowledge Francesco as the child's father for the purpose of the registration, she was entitled to register the child under the surname "Schiavone", her former surname.
[9] In Kreklewetz v. Scopel, 60 O.R. (3d) 187, the Ontario Court of Appeal considered whether a mother who acknowledged a man as a child's father for one purpose would be prevented from not acknowledging his paternity for the purpose of registration and naming of a child under the Act.
[10] Justice Kathryn N. Feldman, writing for the court, observed that the scheme set up by the Act for naming does not turn on the marital status of the parents. In a careful analysis of the history and purpose of the Act, Justice Feldman concluded that:
[36] . . . the legislature made a policy decision to allow the mother to have the ultimate ability to determine the surname of the child in recognition of the fact that there will be circumstances where a mother will have the ongoing responsibility for the child, and should not be forced to have the child linked by name with the biological father. Counsel for the appellant acknowledged that, for example, in the case of rape, a mother should not be forced to have the child bear the surname of the father. Yet there is no provision in the Act for specific exceptions. It is the ability of the mother to treat the father as "unacknowledged by" her which accomplishes that legitimate legislative goal.
The court thus decided that a mother can acknowledge the identity of a child's father for some purposes while not acknowledging him for the purposes of registration and naming under the Act.
[11] The Supreme Court of Canada dismissed an application by the father in that case for leave to appeal.[1]
[12] Francesco says that, despite this authority, it is open to this court to make the order he seeks because the Supreme Court of Canada in a later case, Trociuk v. Attorney General for British Columbia, overturned a decision of the British Columbia Court of Appeal, finding that a provision of that province's Vital Statistics Act, R.S.B.C. 1996, c. 479, very similar to paragraph 10(3) ¶4 of the Ontario Act was unconstitutional, constituting discrimination on the basis of sex and not saved under section 1.
[13] Francesco points to Ontario Superior Court cases that have relied upon Trociuk v. Attorney General for British Columbia in ordering a father who is "unacknowledged" by a mother for the purpose of registration and naming to succeed in an application such as his. For example, in Gallant v. Lewis, Justice Joseph Quinn found that:
[24] . . . it would bring the administration of justice into disrepute, be manifestly unfair to the father and not be in the best interests of the child, if I were to enforce the child-naming provisions of Ontario's Vital Statistics Act where British Columbia's virtually identical statute has been ruled unconstitutional . . .
[14] Justice Quinn noted that the father in that case saw the child almost every day, and that there was "no suggestion that he is an unfit parent". Relying on his parens patriae jurisdiction, Justice Quinn ordered the Registrar General to amend the child's surname to a hyphenated name, as requested by the father. Justice Quinn observed that there would be cases, such as those in which the father "does not play a meaningful role in the child's life", in which it will be appropriate for a father to be unacknowledged, (noting, however, that the Act currently contains no mechanism to allow adjudication on this issue).[2]
[15] Elizabeth says that, even if Francesco is entitled to rely upon these cases, he is a parent who has never been involved. While acknowledging that Francesco does pay child support, she says that, during their brief marriage, he assaulted her before the child was born and that he has shown no interest in the child since his birth, choosing not to exercise the access provided for in their agreement.
[16] The Ontario Court of Justice does not have parens patriae jurisdiction and thus I am unable to make the order sought by Francesco. Even if this court had such jurisdiction, based on the uncontested evidence of Elizabeth as to her reasons for not acknowledging Francesco as Michael's father for the purposes of the Act, I would not make the order sought.
[17] Francesco's motion is dismissed. If costs are sought by Elizabeth, then counsel shall serve and file written submissions no longer than 4 pages within 15 days. Responding submissions of no longer than 4 pages shall be served and filed within a further 15 days. Reply, if any, shall be served and filed within a further 5 days.
Released: 1 December 2014
Signed: Justice Ellen B. Murray
Footnotes
[1] Kreklewetz v. Scopel (2003), 220 D.L.R. (4th) vii, [2002] S.C.C.A. No. 378
[2] See also Garland v. Brouwer, 2011 ONSC 6437, 14 R.F.L. (7th) 380