Court File and Parties
Date: September 5, 2017
Court File No.: D90073/16
Ontario Court of Justice
Between:
Starlaine Hermanson
Kenneth E. Snider, for the Applicant
Applicant
- and -
Ben Mwangi Kiarie
Sage Harvey, for the Respondent
Respondent
Heard: August 29, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] The remaining issue in this case is whether the applicant (the mother) should be prohibited from changing the names of the parties' three children (the children), being:
a) Margaret Raylene Wanjiku Kiarie (Margaret), age 6;
b) Peris Marie Wangechi Kiarie (Peris), age 4; and
c) John Muiru Kiarie (John), age 3.
[2] The mother wishes to change the children's names to:
a) Margaret Raylene Wanjiku Hermanson-Kiarie;
b) Peris Marie Wangechi Hermanson-Kiarie; and
c) John Michael Muiru Hermanson-Kiarie.
[3] The mother is agreeable to an order prohibiting her from making any other changes to the children's names.
[4] The parties have resolved all the parenting and financial issues between them. They agreed to a focused hearing of this remaining issue. The mother testified and was cross-examined by the respondent (the father). The father filed an affidavit as his direct evidence. The mother chose not to cross-examine him. Submissions were made by counsel.
Part Two – Background Facts
[5] The mother is 35 years old. The father is 33 years old.
[6] The parties lived together from November, 2009 until October, 2015.
[7] The mother was previously married and has two children living with her from that relationship. Those children are 13 and 16 years old.
[8] The mother issued her claim for custody and child support on January 21, 2016. The father filed his Answer/Claim on March 1, 2016, seeking joint custody of the children and equal parenting time.
[9] On May 4, 2016, a temporary order was made, on a without prejudice basis, that the father have access to the children at the Toronto Supervised Access Centre.
[10] During 2016, the father's temporary access with the children was gradually increased and the need for supervision was gradually eliminated.
[11] On December 7, 2016, the parties reached a final resolution of the financial issues.
[12] On February 22, 2017, a temporary mobility motion was argued. The court prohibited the mother from moving the children's residence outside of Toronto on a temporary basis.
[13] On March 16, 2017, the court granted the mother's summary judgment motion for custody of the children. The court also granted the father's motion to increase his temporary access. Access was increased to one overnight each weekend.
[14] On July 4, 2017, the parties resolved the parenting issues, with the exception of the name change issue. The mother was permitted to move with the children to Barrie, Ontario and the father's access was increased to alternate weekends and extended holidays. On consent, the father's Answer/Claim was orally amended to include a claim to prohibit the mother from changing the children's names, as this issue arose during the parties' settlement negotiations that day. The parties did not want to have this issue interfere with the balance of their settlement.
Part Three – Legal Considerations
[15] At paragraph 215 of Benko v. Torok, 2013 ONCJ 331, Justice Sheilagh O'Connell wrote:
The Ontario Court of Justice does not have jurisdiction to make an order changing a child's name. There is no statutory authority to make an order compelling the Registrar General of Ontario (the Registrar General) to change a child's name under the Vital Statistics Act and the Ontario Court of Justice does not have parens patriae jurisdiction. In all of the cases where this order has been made, the application was commenced in the Superior Court of Justice and the court has made the order changing a child's name using its parens patriae jurisdiction. See: Gallant v. Lewis, [2008] O.J. No. 2913, 57 R.F.L. (6th) 345, 2008 CarswellOnt. 4384 (S.C.J.), Ryan v. Scott, [2011] O.J. No. 3032, 2011 ONSC 3277.
[16] However, the court is not being asked by the mother for an order changing the children's names. It is being asked by the father to prohibit the mother from changing the children's names as an incident of custody.
[17] Clause 28(1)(b) of the Children's Law Reform Act gives the Ontario Court of Justice statutory authority to determine any aspect of the incidents of the right to custody or access.
[18] In paragraph 24 of Zho v. Chen, [2000] O.J. No. 4520 (SCJ – Family Court), Justice Clifford Nelson found that the court could prohibit a party from changing a child's name as an incident of custody. The test, he wrote, was whether such an order was in the child's best interests.
[19] The father is seeking this order because subsection 5(1) of the Change of Name Act permits a custodial parent to apply to the Registrar General to change a child's name, unless a court order or separation agreement prohibits the change. In the absence of such an order or agreement, the custodial parent is free to change a child's name over the objection of the non-custodial parent. The father is seeking a court order that, if granted, would have the effect of preventing the mother from being able to bring a name change application under the Change of Name Act.
[20] Changing a child's name is not a mere administrative act. See: Herniman v. Woltz, [1996] O.J. No. 1083 (Ont. Gen. Div.). A child's surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification. See: Hill v. Shimla, [1995] O.J. No. 3311 (Ontario Court of Justice (General Division – Family Court)); Belisle v. Poole (1994), 2 R.F.L. (4th) 165 (Ont. Gen. Div.).
[21] The court should be mindful of the parties' agreement about what to name a child at birth. See: Hill v. Shimla, supra.
[22] The jurisprudence has set out factors for the court to consider in determining whether a prohibition of a name change is in a child's best interests. These factors include:
a) Whether the proposed name change will exclude the name of the non-custodial parent.
b) The length of time a custodial parent has had sole custody of the child.
c) Whether there is a continuing close relationship between the child and the non-custodial parent.
d) Whether there would be any serious effect on the non-custodial parent.
e) Whether either parent has displayed any malice or improper motivation.
f) The age of the child and the weight to be given to the child's wishes, in light of that age.
g) The length of time the child has had its name.
h) The surnames of any siblings.
See: Hornan v. Hornan, [2007] MBQB 261; Skoglund v. Dimmery (1989), 59 Man. R. (2d) 154 (Man. Q.B.); Herniman v. Woltz, supra; Melvin v. Burwell, supra; Zho v. Chen, supra.
[23] In Benko v. Torok, supra, the child had only the mother's surname at the time of the trial. Justice O'Connell made a final order for joint custody of the child and made a finding that it was in the child's best interests to have the surnames of both parents.
[24] Justice O'Connell noted that while the Ontario Court of Justice had no jurisdiction to order a change of the child's name, under the Change of Name Act, a joint custodial parent had the right to make a change of name application to the Registrar General. If the other joint custodial parent did not consent to the application, subsection 5(4) of the Change of Name Act permitted an application to be made to the court (including the Ontario Court of Justice – see subsection 5(4.1)) to dispense with that consent.
[25] Justice O'Connell granted leave to the father to bring an application to dispense with the mother's consent if he made a name change application to the Registrar General to include the surnames of both parents and the mother did not consent to it.
Part Four – Analysis
[26] The father submitted that the mother's desire to change the children's names is a continuation of her efforts to marginalize his involvement with them. In support of this allegation, he pointed to the mother's denial of his access in early 2016, her resistance to increased access and her attempt to move to Barrie with the children during the case.
[27] It is clear that the mother does not have high regard for the father. However, the evidence does not support a finding that she is attempting to marginalize him from the children. The court initially determined, based on the evidence filed, that the father should have supervised access. It increased his access to the children gradually, determining that a cautious approach was in their best interests. The mother consented to a final order for expanded access. She has complied with that order, as she has complied with all court orders. The mother also agreed to be responsible for transportation on access exchanges so that she could move with the children to Barrie.
[28] The court finds that the mother is acting in good faith with respect to the proposed name change. It is understandable that she would want the children to share her surname. She wants the children to be publicly identified as much as her children as those of the father. When she agreed to only use the father's surname for the children, the family was intact. Now that the family is no longer intact, she wants the children's surnames to reflect the reality that they have two separate homes.
[29] The father submitted that the proposed name change will diminish his connection with the children. While the father subjectively believes this, there is no objective evidence to support this submission. The children would continue to have his name. This case is much different than many of the cases listed above where a parent tried to eliminate the surname of the non-custodial parent. If the mother had sought to eliminate the father's last name, this would be a very different analysis. The court recognizes that the father has an important relationship with the children and that they should continue to have his name.
[30] The court finds that the proposed name change will not have a serious adverse effect on the father.
[31] The father also submitted that the proposed name change is unnecessary since the mother hasn't sought to change the surnames of her older two children (who have their father's surname). The court considered this factor, but ultimately gave it little weight. The mother explained that she has not changed the names of her older children because she was married to their father and has a traditional view that the children of a marriage should have the surname of the husband of the marriage.
[32] At this point in time, the circumstances of the older two children are much different from those of the three younger children. First, it would be a major adjustment for a 13-year-old and a 16-year-old to change their surnames now. Second, they would need to become involved in any decision to change their names, as clause 5(2)(c) of the Change of Name Act requires the consent of any child 12 years of age or over to a name change. It is understandable why the mother would not seek to change their surnames at this late stage.
[33] The father alleges that changing the children's names will be confusing to third parties associated with the children, including medical professionals, friends and families. The court finds that this is highly unlikely. It will not be difficult for medical professionals and service providers to amend their records. Friends can just be told about the change.
[34] The court did not receive any evidence about the children's views about this issue. Given their age, these views would have little weight. In Herniman v. Woltz, supra, the court gave no weight to the views of a 7-year-old child on a name change issue.
[35] The court considered the following factors that do support the father's claim that the order he seeks is in the children's best interests:
a) The children have always had his last name.
b) There may be some short-term adjustment for the children as they adapt to a new name.
c) The parties agreed to the children's names at birth.
[36] These factors are outweighed by the following considerations that support a finding that the proposed name change is in the children's best interests:
a) The children are mixed race and don't share the mother's surname. The mother testified that she is often required to go to great lengths to explain to service providers that she is their mother and able to provide necessary directions and consents for them. She described a recent trip to the hospital emergency room where she had to go through this process with multiple persons. There is some risk of medical treatment of the children being delayed. There is also a real risk of delay and difficulties when crossing the border if the mother wishes to travel with the children. None of this is in the children's best interests and can be remedied if the children share the mother's surname.
b) The mother has been the children's primary caregiver and their custodial parent since shortly after the parties' separation. The court, by granting her custody of the children, trusts her to make major decisions about the children in a responsible manner. The evidence supports a finding that her desire to change the children's surnames is a responsible decision. She does not seek to eliminate the father's surname – only to add her own.
c) The father submits that it is an important part of the children's identity to have his last name – it reflects the close and important relationship he has with them. It follows that it should be an equally important part of the children's identity to be able to share their mother's surname, to reflect the closeness of their relationship with her. This is the same finding that Justice O'Connell made in Benko v. Torok, supra, in determining that it was in the child's best interests to share the surnames of both parents.
[37] The court also finds that it is in John's best interests that the mother not be prohibited from adding the middle name Michael to his name. The father did not offer any real reason for opposing this proposed change, other than John's name had been agreed to at birth. John's siblings both have names that reflect their mother's Christian heritage and their father's African heritage. It is in John's best interests that he not be treated any differently from them.
[38] The court finds that it is in the children's best interests not to prohibit the proposed name changes by the mother. The mother has agreed not to make any further changes to the children's names and the final order will reflect this agreement.
Part Five – Conclusion
[39] An order shall go on the following terms:
a) The mother shall not be prohibited from changing the names of the children to:
i) Margaret Raylene Wanjiku Hermanson-Kiarie;
ii) Peris Marie Wangechi Hermanson-Kiarie; and
iii) John Michael Muiru Hermanson-Kiarie.
b) The mother is prohibited from making any other changes to the children's names without the written consent of the father.
[40] If the parties cannot resolve the issue of costs, the mother may submit written costs submissions by September 15, 2017. The father shall have until September 25, 2017 to submit any responding written costs submissions. The submissions should not exceed two pages, not including any offer to settle or bill of costs. Counsel should advise the court of the amount of any costs order outstanding in their submissions. The submissions should be submitted to the trial coordinator's office on the second floor of the courthouse.
[41] The court thanks counsel for their efforts in resolving most of this case and agreeing to an efficient mechanism to determine the remaining issue.
Released: September 5, 2017
Justice S.B. Sherr
Footnotes
[1] Justice Ellen Murray came to the same conclusion in Perri v. Perri, 2014 ONCJ 657.
[2] Similar orders were subsequently made in Garland v. Brouwer, 2011 ONSC 6437 and Inosante v. Brooks, 2012 ONSC 150.
[3] A similar finding was made in Melvin v. Burwell, [2000] O.J. No. 3737 (Ont. S.J.) where the court prohibited the mother from changing the name of the child after she had brought a change application to the Registrar General.
