Court File and Parties

Ontario Court of Justice

Date: November 6, 2017

Court File No.: Toronto DFO-14-12100

Between:

Michael Andrew Roy-Bevington Applicant

— AND —

Megan Ball Rigden Respondent

Before: Justice Alex Finlayson

Heard on: August 31, 2017 and after receipt of further written submissions

Reasons for Judgment released on: November 6, 2017

Counsel:

Sheila MacKinnon, counsel for the applicant
Megan Ball Rigden, on her own behalf

PART I: OVERVIEW

[1] The parties are the parents of a 3 year old girl, Kieran, who was diagnosed with Autism Spectrum Disorder, Severity Level 2, in June of 2017.

[2] On August 31, 2017, I heard the father's motion for:

(a) temporary joint decision making respecting Kieran;

(b) an order that the mother be directed to cause Kieran's birth to be registered to include his particulars as Kieran's father;

(d) various expanded access terms; and

(e) certain financial terms respecting child support.

[3] On September 6, 2017, I released a lengthy Endorsement. As I indicated in that Endorsement, the mother did not acknowledge Mr. Roy as the child's father on the Statement of Live Birth. She named the child, "Kieran Sloan Rigden", using the surname of her husband as opposed to the child's father.

[4] Although only the father filed a Notice of Motion, at the motion both parents asked me to make orders in connection with Kieran's name and birth registration. The father wants the child's name to be "Kieran Sloan Rigden Roy". The mother wanted the child's name to be "Kieran Sloan Roy Rigden"[1]. In other words, at least on August 31, 2017 when I heard this motion, both parents agreed that the child's name should be changed, but they disputed the ordering of the names "Rigden" and "Roy". The mother also said she agrees to take steps to amend the child's birth registration to add the father's particulars on the Statement of Live Birth and so it appears that the dispute about the birth registration may resolve on consent.

[5] During argument, I questioned my jurisdiction to make these orders. In my Endorsement of September 6, 2017, I directed the parties to file further submissions in writing to respond to a number of questions I had, and I ordered a timetable for the exchange of the submissions.

[6] The father filed a factum as directed. The mother was represented when the motion was heard on August 31, 2017, but served a Notice of Change 5 days later, on September 5, 2017. This was the day before I released my decision requesting written submissions on these remaining issues. Although she is now acting on her own, she nevertheless provided me with responding written submissions.

[7] I do not intend to repeat my summary of the evidence in this Endorsement. This Endorsement should be read with my Endorsement of September 6, 2017.

PART II: LAW AND ANALYSIS

A. Jurisdiction to Change A Child's Name

[8] An application to change a child's name is an application made to the Registrar General, not to this Court. This is set out in the relevant sections of the Change of Name Act, R.S.O. 1990, c. C.7, as amended which provide:

Application to change child's name

(1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,

(a) the child's forename or surname or both; or

(b) the child's single name, if the child has a single name.

Same

(1.1) Subsection (1) applies to a person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or

(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made.

Consents required

(2) The application under subsection (1) requires the written consent of,

(a) any other person with lawful custody of the child;

(b) any person whose consent is necessary in accordance with a court order or separation agreement; and

Application to dispense with consent

(4) If the required consent cannot be obtained or is refused, the person seeking to change the child's name may apply to the court for an order dispensing with that consent.

Same

(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice.

How application determined

(5) The court shall determine an application under subsection (4) in accordance with the best interests of the child.

Notice to persons with access

(6) The applicant under subsection (1) shall give notice of the application to every person who is lawfully entitled to access to the child.

[9] The Ontario Court of Justice does not have jurisdiction to change a child's name. At ¶217 of Benko v. Torok, 2013 ONCJ 331 (C.J.), Justice Sheilagh O'Connell said:

The Ontario Court of Justice does not have jurisdiction to make [an order changing the child's name]. There is no statutory authority to make an order compelling the Registrar General to change a child's name under the Vital Statistics Act, R.S.O 1990, c. V.4, as amended, and this court 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 ONSC 3277.

[10] In the result in Benko v. Torok though, O'Connell J. granted the parties joint custody. As such, the father fit within the classes of persons who could apply to the Registrar General to change the child's name under the Change of Name Act. As both parents' consent to a name change was required in that joint custody scenario, O'Connell J. granted the father leave to dispense with the mother's consent to his proposed name change in accordance with s. 5(4) of the Change of Name Act if consent was not forthcoming. Although this Court cannot change a child's name, it has jurisdiction to deal with questions of consent within an application to the Registrar General under the Change of Name Act. In making these orders, O'Connell J. applied a best interests test.

[11] In this case, unlike in Benko v. Torok, Cohen J. granted the mother temporary sole custody on consent on January 26, 2016. Short of this Court varying that order, the father does not fall within the classes of persons who can apply to the Registrar General respecting the child's name.

B. The Mother Did Not Need a Court Order To Change the Child's Name to "Roy Rigden"

[12] I will first address the mother's position that the child's name should be changed to "Roy Rigden". I find this position was disingenuous. The mother advanced it in response to the father's request for the name change. As the sole custodial parent, she did not need a court order to achieve this. For 19 months between January 26, 2016 and until my order of September 6, 2017 prohibiting any name changes pending this decision, the mother could have applied to change the child's name under s. 5(1.1) of the Change of Name Act and add "Roy" somewhere in the child's names. She did not even need the father's consent in accordance with s. 5(2) of the Act; she merely had to give him notice under s. 5(6). Yet she took no such steps to change the child's name to include "Roy" but then offered this up as an alternative at the hearing of the motion.

C. The Authority to Name a Child Is an Incident of Custody

[13] Both parents have competing custody claims or claims for incidents of custody before the Court. Consequently, if there has been a material change in circumstances since Cohen J.'s January 26, 2016 order, which I found on September 6, 2017, and it is in the child's best interests to do so, this Court can grant the father decision making authority respecting the child's name. That is the order I intend to make. I say this for the following reasons.

[14] Neither custody nor what constitutes an "incident of custody" is defined in Ontario legislation, however it has a broad meaning. At ¶21 of Chou v. York Region District School Board, Perkins J. said:

"Custody" is not defined in Ontario legislation, though its meaning in family law is generally understood. It consists of a bundle of rights and obligations, called "incidents" in sections 20 and 21 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended. Family law cases often deal with the allocation of rights of custody. Those rights include the right to physical care and control of the child, to control the child's place of residence, to discipline the child, to make decisions about the child's education, to raise the child in a particular religion or no religion, to make decisions about medical care and treatment. The incidents of custody can be dealt with all together or separately, according to section 21, and today it is common for parents who have separated to agree, and for courts to order, that some incidents of custody are jointly vested in the parents and some belong to one parent exclusively. If a custodial right is joint, it may be exercised by any one of the persons who has it.

[15] Two sections of the Children's Law Reform Act are applicable here. Section 21(1) of the Children's Law Reform Act states:

A parent of a child or any other person including a grandparent may apply to a court for an order respecting custody of or access to the child or determining any aspects of the incidents of custody of the child. [my emphasis added]

[16] Section 28 of the Children's Law Reform Act, introduced in 2009, now clearly states that the court may determine any aspect of the incidents of custody and access. See also Webster v. Suteu, 2015 ONCJ 538 (C.J.) at ¶232. Section 28(1)(b) of the Act specifically states:

28(1) The court to which an application is made under section 21,

(b) by order may determine any aspect of the incidents of the right to custody or access.

[17] On September 6, 2017, pending receipt of the written submissions and the release of this decision, I made an order prohibiting any name changes. I relied on Hermanson v. Kiarie, 2017 ONCJ 598 (C.J.). In Hermanson v. Kiarie, Justice Stanley Sherr made an order prohibiting either party from applying for a name change (other than to allow the mother's name to be added). He did so as an incident of custody under s. 28(1)(b) of the Children's Law Reform Act. Sherr J.'s order in Hermanson v. Kiarie is a 'negative order', in that it prohibits a party from applying to the Registrar General to change a name. While I made such an order as a 'stop gap' measure pending the release of this decision, it does not resolve the issue in dispute before me. Nor would an order, like that in Hermanson, that there be no name changes other than to add "Roy" as the child's surname resolve the dispute. Because the mother has temporary sole custody and the father wants the name change with which the mother does not agree, if I made such an order, the mother would still not be compelled to make the name change application to the Registrar General[2].

[18] Based on my review of the applicable provisions of the Change of Name Act and the reasoning in Hermanson v. Kiarie and Benko v. Torok, I find that the authority to change a name is an "incident of custody". There is nothing in s. 28(1)(b) of the Children's Law Reform Act restricting the Court's authority to making orders prohibiting name changes only. In my view, s. 28(1)(b) of the Children's Law Reform Act can be used to make a positive or a negative order to address the authority to apply for a name change in appropriate circumstances.

D. Considerations In Cases Where Relief in Connection with a Child's Name is Pleaded

[19] The legislation and case law reveals the following:

In cases where the custodial parent wishes to apply for the name change, no orders under s. 28(1)(b) are necessary. The sole custodial parent does not need the other parent's consent under the Change of Name Act;
Where there is an existing final order in favour of a custodial parent and that parent wishes to apply to change the child's name, the non-custodial parent's application to prohibit a name change under s. 28(1)(b) will fail unless he or she can establish there has been a material change in circumstances since the final custody order within the meaning of s. 29 of the Children's Law Reform Act such that the Court may then make an order under s. 28(1)(b);
Where there is an existing custody final order in favour of a parent and the non-custodial parent wishes to apply to change the name, the non-custodial parent must establish there has been a material change in circumstances since the final custody order within the meaning of s. 29 of the Children's Law Reform Act before the Court may then make an order under s. 28(1)(b);
In cases of joint custody, no orders under s. 28(1)(b) are necessary. The parent wishing to apply for the name change can apply to dispense with consent of the other parent under s. 5(4) of the Change of Name Act if consent is not forthcoming. The other parent can resist the application and/or cross-apply to prohibit a name change under s. 28(1)(b);
In cases where custody is not finally resolved, the parent wishing to apply for a name change must have a claim for custody, or joint custody, or a claim relating to certain "incidents of custody" before the Court;
If there is a temporary custody order in place, any issues relating to the child's name can be dealt with at trial, or in appropriate circumstances, on a motion. However, the material change test may apply on an interim basis depending on who is the moving party; and
Once any threshold issues are determined, the governing test, either on applications to dispense with consent under the Change of Name Act or when claims under s. 28(1)(b) are advanced is the best interests of the child test.

E. Application of the Test

[20] In this case, both parents have custody claims before the Court. By pleading claims in connection with the child's name, the father has also made a claim for an incident of custody.

[21] The mother's custody order dated January 26, 2016 is temporary only so the question of custody is not resolved on a final basis. While these issues could have been dealt with at trial, at ¶30 of my Endorsement of September 6, 2017, I already found there have been material changes in circumstances since the temporary custody order dated January 26, 2016. It is therefore open to the Court to make an order under s. 28(1)(b) at this stage. The name issue has been a source of ongoing conflict between the parties and I find it is in the child's best interests to resolve the dispute now.

[22] I am vacating the temporary without prejudice order I made on September 6, 2017 in which I prohibited any changes to Kieran's name pending this decision. I am following Sherr J.'s approach in Hermanson v. Kiarie and directing that the child's name shall not be changed other than to "Kieran Sloan Rigden Roy". And it is also my intention to permit the father to apply to the Registrar General pursuant to section 5(1.1) of the Change of Name Act and I am making an order under s. 28(1)(b) to give him this authority. If the Registrar General determines that the mother's consent is required in his application, then I am following Benko v. Torok and I grant the father leave to submit a 14B Motion to me to dispense with the mother's consent.

F. Kieran's Best Interests

[23] In my view, this Order is in the child's best interests for a number of reasons.

(1) The Identity of Kieran's Parents

[24] The mother has put Kieran's parentage in issue in relation to the issue of her name. During her submissions, the mother argued that Kieran had two fathers, Mr. Rigden and Mr. Roy-Bevington. She argued that Mr. Rigden was Kieran's father too, and that this militated in favour of keeping Kieran's surname as "Rigden".

[25] I do not intend to minimize the important role that Mr. Rigden has in Kieran's life, but as the mother has argued this, her position is not correct in law.

[26] Amended sections 6(1) and 7(1) of the amended Children's Law Reform Act as a result of the passage of Bill 28, All Families Are Equal Act, read:

6(1) Birth parent – The birth parent of a child is, and shall be recognized in law to be, a parent of the child.

7(1). Other biological parent, if sexual intercourse - The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child.

[27] Although the Ontario Court of Justice cannot grant declaratory relief, it can make findings of parentage. Because the mother has raised the question of Kieran's parentage I find that Ms. Ball Rigden is the child's mother and Mr. Roy-Bevington is the child's father. M.R.R. v. J.M., 2017 ONSC 2655 (S.C.J.) is the first reported case that I am aware of that considers the recent amendments to Part I of the Children's Law Reform Act. At ¶79 of M.R.R. v. J.M., Fryer J. said:

Where a child is conceived through sexual intercourse, the onus is not on the birth parent to seek a positive declaration of parentage but rather on the party who seeks a declaration of non-parentage. A party who otherwise falls within the definition of parent under s. 4 and s. 7 but has not explicitly reached agreement to the contrary before a child is conceived will be deemed to be a child's parent with all of the associated rights, privileges and obligations.

[28] Pursuant to the amended ss. 4(4) and 13 of the Children's Law Reform Act, it is not possible for Mr. Rigden to be added as a parent, were he to bring an application for a declaration of parentage in the Superior Court for a declaration of parentage respecting Kieran.

(2) The Importance of the Child's Name

[29] There is importance to Mr. Roy-Bevington's place on the child's birth registration and to the child having his surname, both from his perspective and from the perspective of the child. This was addressed in part by the Supreme Court of Canada in Trociuk v. British Columbia (Attorney General), 2003 SCC 34. At ¶15-17, the Court said:

Parents have a significant interest in meaningfully participating in the lives of their children. In B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 85, La Forest J. wrote that "individuals have a deep personal interest as parents in fostering the growth of their own children". In a similar vein, Wilson J. in R. v. Jones, [1986] 2 S.C.R. 284, at p. 319, wrote: "The relations of affection between an individual and his family and his assumption of duties and responsibilities towards them are central to the individual's sense of self and of his place in the world."

Including one's particulars on a birth registration is an important means of participating in the life of a child. A birth registration is not only an instrument of prompt recording. It evidences the biological ties between parent and child, and including one's particulars on the registration is a means of affirming these ties. Such ties do not exhaustively define the parent-child relationship. However, they are a significant feature of that relationship for many in our society, and affirming them is a significant means by which some parents participate in a child's life. The significance of this affirmation is not only subjectively perceived. The legislature of British Columbia has attached important consequences to the presence of a father's particulars on his child's birth registration. It has decided that where a father's particulars are included on the birth registration, his consent is always required for his child's adoption. However, where his particulars are not included, a father must fulfill at least one of an alternative set of conditions. As Prowse J.A. notes, ss. 13(1)(c) and 13(2)(a) of the Adoption Act, R.S.B.C. 1996, c. 5, provide that "a father who is named on the birth registration must be given notice of the proposed adoption of his child. He may, or may not, qualify for notice apart from registration" (para. 141).

Contribution to the process of determining a child's surname is another significant mode of participation in the life of a child. For many in our society, the act of naming a child holds great significance. As Prowse J.A. notes, naming is often the occasion for celebration and the surname itself symbolizes, for many, familial bonds across generations (paras. 138-39).

[30] While Trociuk talks about importance from the perspective of the parent, there is importance from the perspective of the child. For example, as ¶20 of Hermanson v. Kiarie, Sherr J. succinctly wrote, "[c]hanging a child's name is not a mere administrative act…..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".

(3) The Impact of the Child's Autism Diagnosis

[31] I am also taking into account that this child has special needs as part of my best interests analysis. I have already determined it is important that the father be able to fully participate in the child's medical care and treatment and I have already found that the mother has taken steps to exclude the father from participation in that respect.

[32] To date, the mother has excluded the father from the child's "Initial Child and Family Assessment" at "Children's First" and from the assessment resulting in the autism diagnosis, which included him providing his subjective parental reports in the diagnostic process. She withheld information about the ABA course, which was only revealed during the motion. She has taken a restrictive position concerning the father's access. There is evidence that she misled health care providers about Kieran's parentage.

[33] Any barriers, or possible barriers, to the father's participation in Kieran's health should be removed. To the extent that there is any confusion on the part of third party health care providers as to the identity of the child's parents, this can be remedied in part by the child sharing her father's surname.

(4) The Best Interests Factors in Hermanson v. Kiarie

[34] At ¶22 of Hermanson v. Kiarie, Sherr J. lists a number of factors to consider in determining whether a prohibition of a name change is in a child's best interests. These factors, which I reproduce, can equally apply with some modification, to cases where a parent asks for an order resulting in the authority to make a name change application. The factors include:

(a) Whether the proposed name change will exclude the name of the non-custodial parent. I would adapt this criteria to refer to the "other" 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. I would adapt this criteria to refer to the "other" parent;

(d) Whether there would be any serious effect on the non-custodial parent. I would adapt this criteria to refer to the "other" 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; and

(h) The surnames of any siblings.

[35] Applying these factors, I find that the father's proposal is in the child's best interests because:

(a) Ironically, the mother has not included her own surname as part of the child's name. Rather she wishes the child to have her husband's surname. The mother's surname is already excluded by her choice. The father's proposal does not exclude Mr. Rigden and so Kieran's place within both families is acknowledged;

(b) The father's proposal speaks to Kieran's identity;

(d) Custody is not yet finally resolved in this case. The mother has had interim custody only for 19 months, during which time she has engaged in several behaviours that excluded the father from the child's life;

(e) As set out above and in my Endorsement of September 6, 2017, the father is an involved parent. He has gone to great lengths to pursue his relationship with the child;

(f) In this case, the child is young. Her wishes are not a relevant consideration;

(g) Kieran has had the surname "Rigden" for 3 years. However, the father commenced the Application when the child was 1 month old. He raised the issue of the child's name from the outset of her life; and

(h) While Kieran has a half sibling with the surname "Rigden", I am not persuaded that this is a reason that Kieran's surname should be "Rigden". Blended families are quite common and I cannot find this would be confusing to Kieran. As Kieran grows older, she will understand that she has two different male father figures and a half sibling in her life, and her name reflects that.

[36] I am also mindful that the mother is consenting to cause Kieran's birth registration to be amended to include the father's particulars. Had the mother included the father in the process of certifying the child's birth, and had she wanted both names at the time, then Kieran's surname would have been in alphabetical order, either with or without a hyphen, (ie. "Rigden Roy" or "Rigden-Roy"). See s. 10(3)(2.) of the Vital Statistics Act, RSO 1990, c V.4, as amended. I am aware that alphabetical ordering is not required on a subsequent name change under the Change of Name Act, but I otherwise find alphabetical order to be in Kieran's best interests.

G. Kieran's Birth Registration

[37] Mr. Roy-Bevington asks that I make an order that the child's birth registration be amended to include his particulars as Kieran's father. I am not certain that any court orders are required in this respect. It appears that as a result of the amendments to Part I of the Children's Law Reform Act, Mr. Roy-Bevington does not need a declaration of parentage to confirm he is the child's father. See section 7(1) of the Children's Law Reform Act and ¶79 of M.R.R. v. J.M. It also appears that he may apply to the Registrar General to request that the birth registration to be amended to include his particulars pursuant to s. 9(6) of the Vital Statistics Act and ss. 2(15) and (15.1) of Regulation 1094, R.R.O. 1990, as amended.

[38] If I am mistaken about this and he requires a declaration of parentage to cause the birth registration to be changed in accordance with s. 9(7) of the Vital Statistics Act, then he will have to apply to the Superior Court for this relief. The Ontario Court of Justice lacks jurisdiction to order that the birth registration be changed, and this Court cannot grant declarations of parentage or declaratory relief more generally. See the definition of "court" in s. 1(1) of the Children's Law Reform Act; see also s. 97 of the Courts of Justice Act, RSO 1990, c C.43, as amended.

[39] However, I hope further Court applications will be unnecessary as the mother has very clearly indicated in this proceeding that she will cooperate in taking whatever steps are needed to cause the birth registration to be amended to include Mr. Roy-Bevington as Kieran's father.

PART III: ORDERS

[40] I make the following orders:

(a) My temporary without prejudice order of September 6, 2017 prohibiting any changes to the child's name is vacated;

(b) The temporary custody order of Cohen J. dated January 26, 2016 is varied on a temporary basis. Pursuant to s. 28(1)(b) of the Children's Law Reform Act, the father has temporary sole custody and decision making respecting the child's name, and as such he has authority to apply to change the child's name pursuant to s. 5(2) of the Change of Name Act, except as set out below;

(d) If the Registrar General decides that the mother's consent to the father's name change application is required and the mother refuses to supply it, then the father has leave to apply to the Court by 14B motion to dispense with the mother's consent pursuant to s. 5(4) of the Change of Name Act and the 14B motion may be brought to my attention;

(e) The request that I order the child's birth registration be amended to include Mr. Roy-Bevington as the child's father is dismissed as this Court lacks jurisdiction to make this Order; and

(f) If the either party seeks costs of the motion, then they shall be dealt with in writing. The father shall submit costs submissions in writing, limited to 3 pages, plus a Bill of Costs and any case law, by November 20, 2017. The mother may respond by December 4, 2017 and she may make her own costs claim if she wishes. She is subject to the same page limits.

Released: November 6, 2017

Signed: Justice Alex Finlayson

Footnotes

[1] It is unclear from the mother's written submissions, subsequently filed, whether she still takes this position or whether she wants the child's name to remain Kieran Sloan Rigden.

[2] Contrast this situation with that in Hermanson v. Kiarie. In that case, the mother had sole custody but the name change was not resolved. The children had the father's surname. The father sought to prohibit the name change. Sherr J. made an order prohibiting the name change, other than to allow the mother's name to be added as part of the child's surname along with the father's. This effectively allowed for the name change, because the mother, as the sole custodial parent, wanted to apply for the name change and had the authority to apply to the Registrar General.

Michael Andrew Roy-Bevington v. Megan Ball Rigden, 2017 ONCJ 730

Case Summary