Court File and Parties

Ontario Court of Justice

Date: April 8, 2019

Court File No.: Woodstock D60/15

Between:

John Phillip Schaafsma Applicant

— And —

Meghan Katherine Eaton Respondent

Before: Justice S. E. J. Paull

Trial Heard on: February 1 and March 25, 2019

Reasons for Judgment Released on: April 8, 2019

Counsel:

• James Battin, for the applicant
• Gary McQuaid, for the respondent

PAULL J.:

Introduction

[1] Before the court is an application brought by Mr. Schaafsma seeking to prohibit Ms. Eaton from changing the surname of the parties' two children.

[2] The matter proceeded to trial over two days on February 1 and March 25, 2019 and the parties, the paternal grandmother, and the paternal aunt were the only witnesses.

The Law

[3] The authority of the Ontario Court of Justice to make orders with respect to changing children's names was succinctly summarized by Justice S. Sherr in Hermanson v. Kiarie, 2017 ONCJ 598:

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.

[4] In Roy-Bevington v. Rigden, 2017 ONCJ 730, the mother had temporary custody of the child and had the last name of the mother's new husband. The father wanted to include his last name in the child's surname. Justice Alex Finlayson found there was a material change in circumstances and awarded the father, as an incident of custody, the right to apply to the Registrar General to change the name of the child. If the mother opposed the name change, he indicated that the father could move before him to dispense with the mother's consent. Justice Finlayson reviewed who is a parent for the purposes of the Change of Name Act and determined that the new husband was not a parent and not entitled to notice of any request by the father to the Office of the Registrar General to change the child's name.

[5] In Milonas v. Copsas, 2018 ONCJ 713, the court ordered that the mother could not change the children's name, even though she only wanted to add her last name to their surnames. The court found it more probable than not that the mother had primarily made this claim for improper motives – to hurt the father and to punish him for taking her to trial – she had not pleaded the relief and only sought this on the eve of trial. Name changes should not be permitted when they are primarily sought for an improper purpose and are designed to be inflammatory. They should be strongly discouraged as a tactic in litigation.

[6] The onus of proof rests with the person who is opposed to the change, not with the person applying for the change. The person opposing the change of name must prove on a balance of probabilities that the proposed change would not be in the best interests of the children. Skoglund v. Dimmery, 1989 M.J. 250 (M.C.Q.B.). This approach was accepted and applied by the court in Belisle v. Poole.

The Evidence

[7] The facts in this case are relatively straightforward. The following represents the uncontested or agreed-upon facts:

1. The parties began cohabiting in April 2010 and separated in January 2015. They were not married.

2. The parties are the parents of two children, Paige Elizabeth Schaafsma born in 2010, and Brielle Marie Schaafsma born in 2012.

3. The statements of live birth for both children were registered with Schaafsma as the surname.

4. The children were approximately 4 and 2 years old when their parents separated.

5. A prior proceeding was resolved between the parties on the basis of a final order dated June 29, 2017 made on consent which granted, in part, the following:

   • a. sole custody to Ms. Eaton;
   • b. access to Mr. Schaafsma including alternate weekends, one weekday visit on Tuesday evening between November and April of each year, and further specified access for holidays and special occasions.
   • c. child support payable by Mr. Schaafsma and the sharing of section 7 expenses.

6. The terms for access were based on Mr. Schaafsma working up north at a camp for between 4 and 6 months each year in the summer months.

7. There are no terms in the current final order related to the children's names.

8. Following the order Ms. Eaton made applications to the Registrar General to change the children's surnames from "Schaafsma" to "Schaafsma Eaton". She served the applications as required on the respondent who did not reply to her but did bring the current application for a prohibition on changing the names.

9. Ms. Eaton seeks to be able to proceed with the applications to change the children's names, and Mr. Schaafsma seeks to prohibit her from doing so.

Applicant's Evidence

[8] The applicant testified as follows:

1. The parties had no discussions at the birth of either child or after about the children having any other surname than Schaafsma.

2. Ms. Eaton never raised it with him and he was unaware it was an issue until he received her applications to the Registrar General.

3. Until the parties separated, Schaafsma was the only surname used for the children in the community, and he does not see the need to change their names at this time. He felt strongly that Ms. Eaton's intent was to "push his name out" of the children's lives.

4. He felt that the impact on the children of a name change would be to cause confusion for them, and that they would think badly of him and believe there was something wrong with his family.

5. However, he acknowledged in cross-examination that he was not aware of any concerns or impact on the children at school where they have already been using the surname Schaafsma Eaton. He also acknowledged not raising any concerns with the school when he became aware of this.

6. He acknowledged that arrears of child support had increased to approximately $6200 under the current order of June 29, 2017, and that he has not paid the $4500 cost order that resulted from that proceeding.

7. He stated that when he received the applications for the name change he believed that they stated that the names were to be changed from Schaafsma to Eaton. However, when the applications were put to him in cross-examination he acknowledged they in fact sought to change the names from Schaafsma to Schaafsma Eaton, and that he did not read them carefully enough.

8. He acknowledged in cross-examination that it may be important for children to have both parents' names in a separation, but felt it was not necessary for his children because they have had their name since birth.

9. With respect to Ms. Eaton not consulting him in advance of filing her applications to the Registrar General he acknowledged in cross-examination that in 2017 he was under terms of an order dated January 17, 2017 to have no contact with her as a result of convictions following trial for assault, failure to comply, and mischief related to Ms. Eaton.

10. He further acknowledged that he is currently facing criminal charges related to the mother of another of his children who lives in Martin River including forcible confinement, mischief, breach of probation, and three charges of assault with a weapon. He also confirmed he had prior assault convictions related to this woman as well as other convictions for failure to comply and for various firearms related offenses.

11. When confronted with his criminal convictions by counsel for Ms. Eaton he denied he had ever assaulted any women and stated he viewed himself as a law-abiding citizen.

12. He was aware that the children attended school in Norwich but was not aware of their teachers' names. He confirmed he has never attended parent-teacher interviews.

13. He was not aware who the children's current family doctor was but confirmed that Ms. Eaton keeps him informed of any important issues related to the children's health and education.

14. He acknowledged that he observed the name Schaafsma Eaton on the children's report cards and school books in or about September/October 2018, but that he did not contact the school with any concerns.

Paternal Grandmother's Evidence

[9] Janie Schaafsma, the children's paternal grandmother, testified that she was present at the births of both children and overheard no discussions at that time regarding the children's surnames. She has had regular contact with her grandchildren over the years and was never made aware that there was an issue with their last name. She did acknowledge seeing the children's names as Schaafsma Eaton in their school planners.

[10] She agreed with her son that Ms. Eaton's motive was to take the name Schaafsma away completely from the girls. She acknowledged not speaking directly to Ms. Eaton since the parties separated.

[11] In cross-examination she initially denied sending an email to Ms. Eaton referring to her as an "evil bitch" when she became aware of the name change applications, but acknowledged it when counsel for Ms. Eaton showed her a copy of the email.

[12] When asked about her son's criminal convictions including violence against two previous partners, she stated she felt he was wrongfully convicted, even though her son had pled guilty with respect to charges related to the mother of his other child.

Paternal Aunt's Evidence

[13] Theresa Hill, the children's great aunt, testified that she has only ever heard the children's surname as Schaafsma used in the community.

Respondent's Evidence

[14] The respondent testified as follows:

1. During the parties' relationship she made all the decisions regarding the health and education of the children, and Mr. Schaafsma has never challenged her decisions in this regard.

2. Since separation in January 2015 she has remained solely responsible for decisions related to the children and Mr. Schaafsma has never contacted her to inquire about the children or to request consents to permit him to access information independently about the children.

3. He never raised any issue with her of the children using Schaafsma Eaton at school, which they have been since September 2018. At that time she enrolled the children at school under the name Schaafsma, but they both identified as Schaafsma Eaton.

4. She acknowledged in cross-examination not speaking with Mr. Schaafsma at the time about the registration of the children's names at school.

5. Paige, who is in grade 3, has been identifying herself as Schaafsma Eaton since 2016/17, with Brielle doing the same at some point shortly after Paige. Both children recently started gymnastics and were registered as Schaafsma Eaton.

6. The school has raised no concerns with her that the children have experienced any negative consequences as a result of identifying as Schaafsma Eaton, in terms of embarrassment, confusion, or anxiety.

7. When asked why she was not seeking to change the children's names to only Eaton, she stated that both girls identified themselves as Schaafsma Eaton, and that she would not take their father's name away from them.

8. She denied that she was trying to limit Mr. Schaafsma in any way from seeing the children, and strongly denied that she excluded him from being involved in taking the children to their extracurricular activities. She stated that he never expressed the desire to do so, except for one time the week before court. This was the first and only time in the last couple of years he asked to take the children to an activity. He had previously told her that he would not take the children to activities that she arranged during his access time. This decision caused him to miss visits at times.

Reply Evidence

[15] Mr. Schaafsma provided brief reply evidence on the issue of the children's activities. He began by stating that he has offered "several times in our communication journal and over text", to take the children to their activities, however, went on to admit that he did tell Ms. Eaton that he would not take the children to activities on his time if Ms. Eaton was the one who signed them up. As a result of this refusal he acknowledged missing visits "several times". He concluded his reply evidence on this issue when asked again by his counsel if he had requested to take the children to activities, by saying that, "I've never asked if I could but I've told her I would be more than willing to if she needed someone to do it…".

[16] He also stated that he did not have access in the summer of 2018 in spite of the letter his counsel sent on the issue on July 19, 2018 requesting it, but acknowledged not taking any other steps.

Findings and Analysis

[17] The applicant seeks an order that the respondent be prohibited from changing the children's names, or alternatively, an order that if a change is permitted that it be hyphenated to ensure that his name remains used by the children. The respondent seeks to have the application dismissed so she may proceed with her applications to the Registrar General to change the children's names to Schaafsma Eaton.

[18] Section 5 of the Change of Name Act gives a custodial parent the authority to apply to change a child's name. Notice to the noncustodial parent is required, but not his or her consent unless it is required by a court order or separation agreement.

[19] The court has the authority under s. 28(1)(b) of the CLRA, as an incident of custody, to make an order prohibiting a parent from changing a child's name. The onus is on the applicant to establish on a balance of probabilities that the prohibition of a name change is in the children's best interests.

[20] The current final order of June 29, 2017 was made on consent, and granted Ms. Eaton sole custody of the children. The order does not prohibit a name change and it was not an issue in that proceeding.

[21] I accept that Mr. Schaafsma has a positive and ongoing relationship with the children. While there was some disagreement between the parties regarding scheduling access, Ms. Eaton did not provide evidence to suggest that the children do not have a continuing and good relationship with their father.

[22] This is not a case where the children have other siblings living in the home who have a different last name. However it is a case where the children live in a home with a primary parent with whom they do not share any part of their name.

Parental Motivation

[23] One of Mr. Schaafsma's main concerns is that Ms. Eaton has an improper motivation and is seeking to change the names of the children in an effort to eliminate him and his name from the children's lives.

[24] I do not accept that Ms. Eaton has an improper motive or desire to eliminate the name Schaafsma from the children's lives. I accept her testimony with respect to her motivation to seek the change and on this point her evidence was clear, convincing, and cogent.

[25] The most important indicator of her motive, in my view, is that Ms. Eaton is not seeking to remove the name Schaafsma, but to simply add her surname. When asked why she did not seek to change the names of the children to Eaton alone when she acknowledged that she did not get along with Mr. Schaafsma, she responded that the children identify with both of their parents' surnames and she would not want to take their father's name away from them in those circumstances. This to me was a candid and child-focused response which did not reflect any negative personal feelings she may have about Mr. Schaafsma based on the fact that he has been convicted of assaulting her and that she has provided for all the needs of the children without the appropriate financial support from him. Her testimony on this point was consistent and presented in a forthright manner, and she fairly conceded that the children did associate with the name Schaafsma.

[26] Ms. Eaton testified that apart from a time right before court Mr. Schaafsma has never offered to take the children to their activities and had always taken the position with her that he would not take the children to activities she signed them up for during his access times.

[27] Mr. Schaafsma testified that he had asked several times to take the children to activities. He offered this as an example of her trying to limit his time with the children in an effort to ultimately eliminate him and his name from their lives. I did not find his testimony on this issue credible. After he initially testified in reply that he had offered several times to take the children to activities, he then stated that he had told Ms. Eaton that he would not take the children to activities that she had signed them up for. He acknowledged that this choice resulted in him not exercising access several times.

[28] Further, he concluded his testimony on this issue by saying that in fact he had never asked to take the children to activities but said that he would if she needed him to. His varying and evolving answers on this point significantly undermined his credibility, and I do not accept that he has asked repeatedly about taking the children to activities. I accept Ms. Eaton's testimony that he has generally not asked and, by his own choice, missed access at times because he refused to take the children to activities she had arranged.

[29] Mr. Schaafsma also acknowledged that Ms. Eaton keeps him informed of any important information or issues concerning the children. In the circumstances these are not the behaviours of someone trying to "eliminate" Mr. Schaafsma from the children's lives. Rather the evidence suggests that Mr. Schaafsma has chosen not to be more engaged in his children's lives. He acknowledged he has chosen not to exercise his access with the children at times if it meant taking them to an activity he did not arrange. He further acknowledged never requesting consents pursuant to the current order so that he could confer directly with third parties about the children. He also acknowledged not knowing the names of the children's teachers or doctor, and that he never attended parent-teacher interviews.

[30] Overall I do not accept that Ms. Eaton has an improper motive in seeking to add her name to the children's surname. I find that she has sought the name change for her children in good faith so that they may be identified as much as her children as those of the father.

[31] In my view Mr. Schaafsma's position appears motivated more by hurt pride than a balanced and child-focused assessment of the children's best interests. His initial motivation also resulted, in part, by the fact that he misread the applications and believed that Ms. Eaton was trying to eliminate his name altogether by changing the children's names to Eaton only. This was not the case but nonetheless set the tone for how he perceived Ms. Eaton's motives and for how he has approached this matter.

Children's Use of the Proposed Name

[32] I accept Ms. Eaton's testimony that the children, particularly Paige, identify themselves presently as Schaafsma Eaton, and have been doing so at school on their books and planners since at least September 2018, and that Paige has self-identified this way since sometime in 2016/17 and Brielle has from some point shortly after that. Mr. Schaafsma acknowledged that he had seen the name Schaafsma Eaton used by the children in their school books and planner, and had seen it on the report cards since September 2018.

Original Agreement on Names

[33] I am mindful that at birth and up until sometime after 2015 when the parties separated that they were known only as Schaafsma. I also accept Mr. Schaafsma's evidence that the parties had agreed at the birth of each child that Schaafsma was the surname and that Ms. Eaton did not dispute this at the time. Ms. Eaton did not deny this in her evidence, and acknowledged in cross-examination that both births were registered as Schaafsma.

Impact on Children

[34] Mr. Schaafsma felt strongly that changing the children's names would cause them confusion. I am not persuaded that the adding of Ms. Eaton's surname to the children's name would likely cause them to experience any confusion, anxiety, or discomfort.

[35] He offered no particulars to support his view that the children would be confused by the name change. The children have been using the name Schaafsma Eaton at school since September 2018, and both have identified as that since prior to that time. There was no evidence to suggest that this has had or will have any adverse effect on them at school or in the community. Mr. Schaafsma knew the children were using Schaafsma Eaton at school, and acknowledged not being aware of any information, including from the school, about any negative impact on them.

[36] Mr. Schaafsma also opposes the change because he stated that it would result in the children thinking badly of him or that there was something wrong with his family. He offered no evidence other than his belief to support that the proposed name change would have this result. The evidence from Ms. Eaton was that the children in fact identified with both of their parents' names. The evidence does not support a finding that the change of name has or would result in any negative feelings by the children towards their father and his family.

Hyphenation Alternative

[37] Neither was I convinced by Mr. Schaafsma's argument that if a change was determined by the court to be in the children's best interest, that the surname be hyphenated as a way to ensure the continued use of his name. As noted the children already use and identify as Schaafsma Eaton at school, and I have rejected Mr. Schaafsma's claim that Ms. Eaton has an improper motive or that this change is the first step in a plan by her to eliminate the name Schaafsma altogether. Ms. Eaton indicated that she has no intention of changing children's names to Eaton only, and Mr. McQuaid indicated in closing submissions that his client would be prepared to execute a domestic contract or be subject to a court order to that effect. On this basis a prohibition shall issue on any further or other name change beyond the present one proposed by Ms. Eaton in the current applications to the Registrar General.

Applicant's Failure to Meet Support Obligations

[38] Mr. McQuaid states that another factor to be considered is that Mr. Schaafsma has not come to the court with clean hands in that he has convictions of violence against the mothers of his children, including Ms. Eaton, and that he is in substantial arrears of child support.

[39] Although not a primary consideration, the issue of Mr. Schaafsma's failure to comply with his support obligations is relevant. He acknowledged that his arrears have increased to over $6200 since the last order, and of making no efforts to pay the costs order of $4500 that resulted from the previous proceeding.

[40] Ms. Eaton on the other hand, has borne the bulk of the responsibility for ensuring the children's needs are met without the required financial assistance from Mr. Schaafsma. She ensures the children's educational and medical needs are met, and that they remain engaged in activities including skating, gymnastics, and Brownies.

[41] Justice James in Awada v. Awada, 2010 O.J. No. 2168 (ONSC), articulated the impact on an application for a prohibition on a name change by a noncustodial parent who has failed to provide the appropriate child support as follows:

14. As well, it is difficult to ignore the fact that Mr. Awada continues to neglect his support obligations. As previously indicated, I believe that he has the financial ability to pay support if he chooses to. It is difficult to accept his submissions that his parental bonds with his children will be compromised if they are allowed to change their surname when he has an opportunity to strengthen those same bonds by enhancing their material circumstances through the payment of child support.

[42] I accept this reasoning which also applies in this case to Mr. Schaafsma's continuing failure to meet his financial responsibilities to his children.

Best Interests of the Children

[43] Overall, this case involves a mother who is the sole custodial parent and who is clearly largely if not entirely responsible for ensuring the children's needs continue to be met, and who seeks to add her name to the children's surname along with the father's.

[44] I have found that Ms. Eaton does not have an improper motivation in seeking the change, and that in all likelihood the name change will not cause the children confusion or discomfort, or negatively impact their relationship with their father.

[45] Most importantly, the name change proposed by Ms. Eaton would not exclude either of the parents' names and would reflect not only the current way the children are identified at school, but the fact that they have two homes. It would further permit them to share part of their surname with the parent with whom they reside primarily.

[46] The changing of a child's name is not merely administrative but rather a change of something that is an important part of a child's identity. The test is one of best interests from the child's perspective, as opposed to what may or may not be in the parent's interests.

[47] When the entirety of the circumstances are considered, the applicant has not established that the best interests of the children require a prohibition on a name change. Rather, the evidence satisfies me on a balance of probabilities that it is in the best interests of the children in the particular circumstances of this case that they share the surnames of both of their parents as proposed by Ms. Eaton.

Order

[48] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. The application is dismissed, thereby permitting Ms. Eaton to proceed with the applications to the Registrar General to change the children's surnames from Schaafsma to Schaafsma Eaton.

2. Once the children's surnames are changed to Schaafsma Eaton, a prohibition shall issue on any further or other name change.

The parties are encouraged to agree upon costs in this matter. In the event that the parties do not agree, any party seeking costs will contact the trial coordinator in writing by no later than April 19, 2019, to arrange a return date for submissions on that issue, and the parties shall provide written submissions of no more than 3 pages excluding attachments in advance of the return date. If no court date is sought prior to this deadline, the parties will be deemed to have resolved the matter of costs.

Released: April 8, 2019

Signed: Justice S. E. J. Paull