Court File and Parties

Ontario Court of Justice

Date: 2017-11-24

Court File No.: Toronto DFO-15-13067-02

Between:

Jesica Paula Pastran Applicant

— And —

Brian Patrick McDonough Respondent

Before: Justice Alex Finlayson

Heard on: November 23, 2017

Reasons for Judgment released on: November 24, 2017

Counsel:

• Carolyn Chambers, for the applicant
• Tinnish Andersen, for the respondent

ALEX FINLAYSON J.:

PART I: NATURE OF THIS MOTION

[1] The parties are the parents of a 7 year old girl, Annabelle Rose McDonough, born August 14, 2010. They have joint custody of Annabelle and a comprehensive shared parenting arrangement pursuant to their Separation Agreement dated December 31, 2015. There are no court orders for custody or access.

[2] The mother has launched an Application for an order for, among other things, sole custody of Annabelle and for access terms that are different from what is provided for in the Separation Agreement. The mother also wishes to add her surname "Pastran" to Annabelle's surname. To be clear, the mother did not suggest that the father's surname, "McDonough" should be deleted from Annabelle's surname; rather she wishes to have the child's surname hyphenated. She says that the child's last name should either be "Pastran-McDonough" or "McDonough-Pastran". Her primary submission was that the father could decide between these two choices.

[3] The father resists the proposed name change and has withheld his consent pursuant to both the Separation Agreement and s. 5(2) of the Change of Name Act, R.S.O. 1990, c. C.7, as amended. Therefore, I heard a motion to dispense with the father's consent pursuant to s. 5(4) of the Change of Name Act. I also heard a related request to appoint the Office of the Children's Lawyer, which I dismissed orally during the argument.

[4] Certain paragraphs of the Separation Agreement are particularly germane to the motion argued before me. Paragraph 4.16 reads, "Neither Party shall change Annabelle's name without the other's written consent". This paragraph essentially re-states the principle set out in section 5(2) of the Change of Name Act that joint custodial parents must both consent before a proposed name change application can proceed.

[5] Paragraph 12.16 of the Agreement contains standard language that where consent is required in a term of the Agreement, it shall not be unreasonably withheld. Whether consent has been withheld unreasonably was made subject to the Agreement's dispute resolution clauses. These clauses require negotiation and mediation before litigation. The parties did both, and could not resolve the name change dispute.

[6] Although questions of consent are subject to a reasonableness analysis in the Agreement, this motion before me is governed by the Change of Name Act. The test that I must apply is not whether the father's refusal to consent to the name change was reasonable or unreasonable, but rather whether the request to dispense with the father's consent to the proposed name change is in the child's best interests.

PART II: THE PARTIES' POSITIONS

[7] The mother asks for an order dispensing with the father's consent to her proposed name change application for four reasons:

1. She gave evidence that there had been a number of cross-border trips where border officials questioned her relationship with Annabelle. The mother has re-partnered and travels with the child and her new husband frequently. All three persons have different names. According to the mother, the child is fearful and stressed out at border crossings. She believes the proposed name change will help ameliorate this as any ambiguity that Annabelle is her daughter will be resolved;

2. The mother has had similar difficulties when dealing with third parties involved with the child. She cited difficulty when it came to registering Annabelle in extra-curricular activities. She believes that the proposed name change will help ameliorate this;

3. The mother argues that it is important to her, and to Annabelle, that her heritage be recognized in Annabelle's surname. Annabelle comes from a mixed background and the mother wants the child's identity to include her South American heritage. The mother relies on Trociuk v. British Columbia (Attorney General), 2003 SCC 34, and my decision in Roy-Bevington v. Rigden, 2017 ONCJ 730 (C.J.), in making this argument; and

4. The mother is currently pregnant. She is having another child with her partner. That child will be Annabelle's half-sibling. The mother argues that it is important for Annabelle to ensure her place within the blended family be recognized and affirmed and this can be accomplished in part by changing her surname.

[8] The mother further argues that I should appoint the Office of the Children's Lawyer ("OCL") to provide its input concerning the name change issue if I was not prepared to grant the motion based on the record before me. Incidentally, she also says that I should appoint the OCL concerning her broader custody and access claims, although there was no motion before me concerning that.

[9] The father does not agree to either of the mother's proposed versions of the name. He wishes the child's name to remain as is. He responded to each of the mother's arguments during the motion. His primary argument is that the mother is engaging in a pattern to exclude him from participation in Annabelle's life and this motion is part of that pattern.

[10] The father also argues that the Separation Agreement was only recently signed and in it, the parents agreed that there would be no name changes without the other's consent. He argues that as there had been no material change in circumstances since the Agreement, the mother's motion must fail.

[11] He further objects to the OCL appointment respecting the more narrow name change issue. His counsel questioned whether the OCL would accept a referral for a discrete issue like this only. He also resists the request to appoint the OCL respecting the other issues in the case. Were the latter to be argued, he would say there is no basis to change the status quo respecting custody and access, and therefore there is no reason to appoint the OCL.

[12] During argument, I told counsel that I did not think an OCL appointment is necessary for me to decide the discrete issue about the child's name. Both counsel agreed that I should decide the discrete issue based on the record before me. I also told counsel that I would not entertain the request to appoint the OCL concerning the other issues, given the absence of a motion for that, and given the father's stated opposition to it. I did not have a proper record before me.

PART III: LAW AND ANALYSIS

[13] I am granting the mother's motion to dispense with the father's consent to her proposed name change application on certain conditions. I find that it is in the child's best interests that the mother's surname be added to the child's surname. My decision is premised on the mother following through with the specific proposal that she submitted to this Court, namely that the child's surname be changed to either "Pastran-McDonough" or "McDonough-Pastran". I would not have found it to be in the child's best interests, for instance, if the mother had sought to delete McDonough, or add her new partner's name to the child's surname. Therefore, I am also making an order restraining any other or any further, name changes other than what is authorized by this Order. I am making these Orders for the following reasons.

A. Applicable Legal Principles

[14] The following legal principles apply:

1. The Ontario Court of Justice does not have jurisdiction to change a child's name. See Benko v. Torak, 2013 ONCJ 331 (C.J.). However, this Court has jurisdiction to make orders in connection with name change applications to the Registrar General in certain circumstances;

2. A custodial parent may apply to the Registrar General to change a child's name pursuant to section 5(1.1) of the Change of Name Act;

3. Where the parents have joint custody either pursuant to an order or agreement, or where a Separation Agreement requires the consent of another person (both are applicable in this case), the party who wishes to apply to change the name must obtain the consent of that other person pursuant to section 5(2) of the Change of Name Act;

4. If the other person does not consent, then the party seeking to apply for a name change may apply to "the court" to dispense with the other person's consent pursuant to section 5(4) of the Change of Name Act;

5. "Court" is defined in section 1 of the Change of Name Act as the Ontario Court of Justice. Therefore this Court has jurisdiction to deal with such matters of consent;

6. On such an application, this Court must apply a "best interests of the child" test. See section 5(5) of the Change of Name Act. There are no statutory best interests factors in the Change of Name Act, although various cases have articulated the factors this Court should consider. The Separation Agreement's reference to reasonableness cannot override the statutory best interests test as the applicable test; and

7. Additionally, this Court also has jurisdiction to restrain a parent from making a name change application at all pursuant to section 28 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended.

B. The Threshold of Material Change in Circumstances Does Not Apply in This Case

[15] I reject the father's argument that is based on the requirement that the mother demonstrate a material change. I do not agree that she must first establish a material change in circumstances prior to bringing this motion.

[16] The material change in circumstances threshold is engaged pursuant section 29 of the Children's Law Reform Act when a party seeks to vary an existing custody or access order. Section 29 reads, "A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child."

[17] The Separation Agreement was not incorporated into an Order of this Court and so section 29 of the Children's Law Reform Act does not apply in this case. There is also no reference in the Separation Agreement to a material change in circumstances threshold either before changes to the parenting terms can be made. In my view, the reference to material change in this case is misguided because the mother is not asking, and does not need to ask, the Court to change the existing custodial arrangement before she may proceed with her proposed name change application.

[18] In some cases where a parent wishes to apply for a name change the material change threshold may become engaged. But that threshold is not engaged under the Change of Name Act; it is engaged under the Children's Law Reform Act in the context of a related custody dispute. I recently addressed this distinction fully in Roy-Bevington v. Rigden, 2017 ONCJ 730 (C.J.).

[19] In Roy-Bevington v. Rigden, the moving party was an access parent. As such, he had no ability to make an application to change the child's name pursuant to s. 5(1.1) of the Change of Name Act. For various reasons, I varied the temporary custody order under the Children's Law Reform Act and then dealt with the question of the mother's consent under the Change of Name Act, which permitted the father to proceed with a name change application. However, to be clear, the material change analysis in that case related to the custody order.

[20] Here the mother already has joint custody. As such, she is already authorized to apply under the Change of Name Act to change the child's name. The wording of paragraph 4.16 of the Separation Agreement that prohibits name changes without consent does little more than confirm what the Change of Name Act says, namely that the father's consent is also required. It is therefore within this Court's jurisdiction to entertain an application to dispense with the father's consent as section 5(4) of the Change of Name Act makes provision for that.

[21] The only test under the Change of Name Act for such an application is a best interests test. Again, there is no threshold material change test in the Change of Name Act. Given these findings, I need not decide whether there have been material changes in circumstances since the Separation Agreement.

C. Application of the Best Interests Test

[22] In the recent decision Hermanson v. Kairie, 2017 ONCJ 598 (C.J.), Sherr J. listed a number of factors to consider when applying the best interests test under s. 5(4) of the Change of Name Act.

[23] Applying those factors to the facts of this case, I make the following findings:

1. I find that the four reasons set out above that the mother has articulated to be persuasive. I accept that the proposed name change addresses the mother's concerns and is in the child's best interests;

2. The father argues that the mother is engaging in a pattern of trying to exclude him through this Court's process, by asking not only for the authority to apply for the name change, but also by asking in her Application to change the joint custody status quo and to reduce his access. I am not prepared to find at this stage, as the father has invited me to find, that the mother's request to change the child's name is part of a broader litigation strategy to exclude the father. I am not prepared to find that this name change motion is the first step in this plan. There is no evidence of this. Whether or not there is merit to the mother's other claims concerning custody and access will be dealt with at a later date. Even if they lack merit, the claim relating to the name change is a separate claim that I have analyzed based on the evidence presented and which I find to be meritorious;

3. The only evidence before me that might give rise to such an inference concerns the manner in which the mother filled out a form for the child's day care. The mother referred to her new partner as the child's father on the form rather than the father. Understandably, the father is upset by this. But this evidence on its own does not rise to the level of a pattern that the father argues I should find. Moreover, the mother has given an explanation as to how the form was created in error in this fashion, and about the immediate steps she took to rectify the error once she became aware of it. I am prepared to accept her evidence about this. In any event, this Court can make the necessary orders to ensure the father is accurately reflected on forms concerning the child. But this isolated incident alone is not a basis to dismiss the mother's motion;

4. I cannot see any serious impact on the father from making the Order I am making concerning the child's name;

5. I do not have any evidence of the child's wishes obtained from an independent person like the OCL. I do not have that evidence because the father resisted the request to appoint the OCL, and I did not find it necessary to appoint the OCL in any event. That said, I did have some evidence related to the child's wishes, expressed in the mother's affidavit, such as the evidence about the child's experiences at border crossings. In any event, the child is 7 and so the weight of any wishes of a child of this age would necessarily be less than the wishes of an older child. In my view, it is also significant that the Change of Name Act requires the consent of children over 12, but not that of younger children. Thus, there is some statutory guidance as to the weight to attach to a child's wishes, based on age, in cases under the Change of Name Act;

6. I am persuaded by the fact that the mother is pregnant, and Annabelle will soon have a new half-sibling. Annabelle's reality is that she is a member of two households and blended families. She will have a new half-sibling who will have the mother's and the mother's new husband's surnames in hyphenated form (ie. the new child's surname will be "Uribarri-Pastran"). Adding "Pastran" to Annabelle's surname reflects her place within that blended family and acknowledges her relationship with her half-sibling; and

7. In my view, the proposed name change enhances the mother's ability to fully participate in the child's life. Simultaneously, it does nothing to detract from the father's ability to participate fully.

PART IV: ORDERS

[24] I therefore make the following orders:

1. Within 7 days, the father may elect in writing whether he would prefer the child's name to be "Annabelle Rose Pastran-McDonough" or "Annabelle Rose McDonough-Pastran". If he fails to provide the mother with his choice, then the mother may choose either option;

2. The mother is prohibited from applying to change the child's name to anything other than the choice the father makes pursuant to paragraph 1 above, or to anything other either option in paragraph 1 above if the father does not make the written election within 7 days. This Order is made pursuant to s. 28 of the Children's Law Reform Act;

3. The father's consent to the mother's name change application is dispensed with, provided that she makes an application to change the child's name that accords with the names authorized in this Order;

4. The mother is prohibited from completing any forms naming her new partner as the child's parent. In the future, she shall ensure that any forms that require the child's parents to be identified are completed such that she is named as the child's mother and the Respondent is named as the father. If the father completes any forms, he shall do the same. If there is a situation where a form cannot be accurately completed because it does not recognize that the child resides in two households or for some other reason, then the parent completing the form shall advise the other parent of the problem prior to completing the form, and the parties shall complete the form in a manner that is mutually agreeable to them which accurately reflects Annabelle's parentage, or either may seek further direction of this Court;

5. The mother shall not hold out any person other than the Respondent to be the child's father;

6. For clarity, this ruling is not intended to decide whether the OCL is needed relating to any other issues in the case. That was not argued;

7. As I indicated at the end of oral argument, the next event is a Settlement Conference. If the lawyers think that another motion is required, they shall advise me by 14B motion and indicate what needs to be dealt with by way of motion before the Settlement Conference proceeds and the matter as presently booked can be re-scheduled; and

8. Counsel should try to resolve the issue of costs of this motion between them. If they cannot and if either party seeks costs of this motion, he or she shall submit 3 pages of submissions in writing with a Bill of Costs and any case law by Friday, December 1, 2017. The other party may respond subject to the same page limits and attachments by Friday, December 8, 2017.

Released: November 24, 2017

Signed: Justice Alex Finlayson

Footnote

[1] Had there been such a clause, there would be a further issue about the standard to apply when different custody and access terms are sought in the face contrary terms in the contract. Moreover, this Court would also have the ability to disregard terms concerning custody and access in an Agreement if it is in the child's best interests to do so. See section 56(1) of the Family Law Act, R.S.O. 1990, c. F.3, as amended.