S.D.G. v. A.S., 2015 ONSC 752

ORILLIA COURT FILE NO.: FC-12-36-00

DATE: February 3, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

S.D.G.

Applicant

– and –

A.S.

Respondent

Applicant – self represented

Kenna Bromley, for the Respondent

HEARD: December 4, 2014

JUDGMENT

mCGEE j.

Order Sought

[1] The father seeks an order adding his name to the birth registration of the parties’ daughter, now aged 6. Once his name is added, he believes that he can change the daughter’s maternal surname to a hyphenated surname per section 10(3) 2 (ii) of the Vital Statistics Act R.S.O 1990, c. V.4.

[2] The mother is very much opposed to any change in their daughter’s name.

[3] All other claims held by either party within this action were resolved by Minutes of Settlement dated December 3, 2014.

Background

[4] At all too young an age, Ms. A.S. left high school to raise two children within an insecure and troubled relationship. Those children are now ten and eight years of age. Subsequent to a period of society care, both now reside with her. They each have a maternal surname: A.S.. Neither of the older children is the subject matter of this proceeding.

[5] In the aftermath of that first relationship, Ms. A.S. took up with Mr. S.D.G., a young man already well known to the police.

[6] Ms. A.S. and Mr. S.D.G. had an erratic and risky relationship. Ms. A.S.’s first two children were apprehended by the Simcoe Children’s Aid Society in April of 2007, a mere month after she began her association with Mr. S.D.G..

[7] Ms. A.S. and Mr. S.D.G. each tell a very different story of their short time together. Mr. S.D.G. objects to any focus on his criminal record or his pattern of incarceration. He suggests that he was a positive influence on Ms. A.S. and a good provider. Ms. A.S. credibly describes their time together otherwise.

[8] Their daughter was born on […], 2008.

[9] A summary of Mr. S.D.G.’s adult criminal incident reports can be found within the section 30 Assessment prepared for this trial. Mr. S.D.G.’s producible record starts in March 2004 and is lengthy. He is currently facing fresh charges.

[10] Mr. S.D.G. has been twice sentenced to significant periods of incarceration, including time at Kingston Penitentiary. It is not contested that he was incarcerated at the time of A.K.N.S.’ birth. At no time did the parties reside together after A.K.N.S. birth.

[11] After A.K.N.S. was born, Ms. A.S. registered her birth and her name: A.K.N.S.. At all times, she knew that Mr. S.D.G. was the father. It was a conscious decision not to acknowledge Mr. S.D.G. on the record of birth. She testified during trial that she did not acknowledge him because she did not see any future in their relationship. She also wanted all three of her children to be bound together with the same surname.

[12] The Simcoe CAS apprehended A.K.N.S. at birth and placed her in a different foster care setting than her siblings. At all times, the CAS was aware that Mr. S.D.G. was the father. He was named as a respondent in the protection proceeding. A.K.N.S. was identified as A.S.G. in some of the CAS documents.

[13] A.K.N.S. remained in care over the next two years. She had regular access with her mother which began as supervised and then progressed. Over time, Ms. A.S. received treatment for her drug dependency, took counselling and improved her circumstances.

[14] In 2010 A.K.N.S. and her two older siblings were returned to their mother’s care under an order for supervision. They have since continued in their mother’s care.

[15] Mr. S.D.G. had no contact with A.K.N.S. until he was released from custody late in 2010. Through the CAS he had certain supervised visits which ended in October 2011. In earlier proceedings he blamed the mother and the CAS for his supervised visits ending.

[16] On February 3, 2012 Mr. S.D.G. issued this Application for custody of A.K.N.S., extensive incidents of custody and child support.

[17] In the Application he spares no details in vilifying the mother. Although he acknowledges that he has not seen his daughter since October of 2011, he pleads at paragraph 19 that, “A.K.N.S. has told me several times that she does not like the Respondent.”

[18] A lengthy, relentless and difficult course of litigation ensued. Over time it was agreed that Mr. S.D.G. would have supervised access, which was eventually extended to supervised day visits. Access was increased to alternate weekends in August of 2013. Throughout, Mr. S.D.G. pressed that he ought to have sole custody, with supervised access to the mother.

[19] In a motion heard July 31, 2014 Mr. S.D.G. raised for the first time a request for a change in A.K.N.S.’ surname. It is not claimed in his Application.

[20] That motion was the third motion brought by Mr. S.D.G. - each for very different orders - after the matter was called for trial in May of 2014. Given the clear order in the trial management endorsement that no further motions were to be heard prior to trial, Justice Wildman ordered that the father’s motion to amend the birth registry be heard by the trial judge in November 2014. Costs were awarded against Mr. S.D.G..

[21] The trial had not proceeded in May 2014 for want of the timely production of CAS records, and Mr. S.D.G.’s reconstituted motion for a section 30 assessment - which relief had been previously denied. Given the court’s view that the matter was not ready for trial,[^1] Justice Graham permitted the adjournment on very specific terms. Those terms included an expedited section 30 assessment, to be fully funded by Mr. S.D.G..

[22] The November trial was deferred to accommodate receipt of the section 30 assessment, delivered December 2, 2014. The report recommends sole custody of A.K.N.S. to the mother; supports to her parenting; and that access continue to be supervised by a responsible adult until the current charges against Mr. S.D.G. are determined.[^2]

[23] On December 3, 2014 both a disclosure meeting and a judicial pretrial were conducted. The parties entered into comprehensive Minutes of Settlement that resolved all parenting and support issues, but for the issue of A.K.N.S.’ surname. Ms. A.S. has final sole custody. Mr. S.D.G. has a detailed order for supervised access. There is a review provision upon a determination of the charges presently faced by Mr. S.D.G..

[24] At this trial of the remaining issue, Mr. S.D.G. presses for an amendment to A.K.N.S.’ birth registration. As he understands it, should the registration be amended to acknowledge him as the father, he can then make an application for a hyphenated surname without the mother’s consent.

[25] A.K.N.S. is in grade one. She cites and writes her name as A.K.N.S.. Her school records, medical records, health card, birth certificate and all other identifying information are issued with the maternal surname of A.S..

[26] Ms. A.S. is strongly opposed to any change in A.K.N.S.’ name. She believes that it would be confusing for A.K.N.S., and fears that it would set her apart from her siblings.

[27] Mr. S.D.G.’s supervised alternate weekend access continues. A.K.N.S. knows Mr. S.D.G. as her father, calls him “Dad,” and relates to him as a daughter. There is no suggestion that a change in surname would be a factor in the father-daughter relationship. Rather, Mr. S.D.G. sees a name change for A.K.N.S. as being in her best interests, and as a necessary correction of the mother’s previous actions.

The Law

No Statutory Mechanism

[28] When the father of a child is unknown to, or unacknowledged by the mother, the Ontario Vital Statistics Act R.S.O 1990, c. V.4 provides that she may give the child her surname or former surname.

10. (1) A child whose birth is certified under section 9 shall be given at least one forename, subject to subsection (2), and a surname. R.S.O. 1990, c. V.4, s. 10 (1).

How child’s surname determined

(3) A child’s surname shall be determined as follows:

1. If both parents certify the child’s birth, they may agree to give the child either parent’s surname or former surname or a surname consisting of one surname or former surname of each parent, hyphenated or combined,

2. If both parents certify the child’s birth but do not agree on the child’s surname, the child shall be given,

i. the parents’ surname, if they have the same surname, or

ii. a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, if they have different surnames.

3. If one parent certifies the child’s birth and the other parent is incapable by reason of illness or death, the parent who certifies the birth may give the child either parent’s surname or former surname or a surname consisting of one surname or former surname of each parent, hyphenated or combined.

4. If the mother certifies the child’s birth and the father is unknown to or unacknowledged by her, she may give the child her surname or former surname (Emphasis Added).

[29] A mother has an absolute discretion whether to acknowledge the child’s father on the registration of birth.

[30] An unacknowledged or unknown father may subsequently obtain a declaration of paternity under the Children's Law Reform Act, and per section 9(7)[^3] of the Vital Statistics Act send a certified copy of the declaration to the Registrar General, who will then amend the particulars of the child's parents in the registration.

[31] There is no provision in Ontario law for an unacknowledged father to amend the surname of his child.

[32] A mother’s discretion to not acknowledge a father, even a known father, has been confirmed by the Ontario Court of Appeal in Kreklewetz v. Scopel, 2002 44989 (ON CA), 2002 CarswellOnt 1981 ONCA. In Kreklewetz an unmarried mother chose not to acknowledge the father, and registered the child with only her own surname. The father then sought to amend the birth registration to change the child’s surname to include his own.

[33] In Kreklewetz, the Court of Appeal found that such discretion is based on the legislature’s recognition that there will be circumstances in which the mother will have good reasons for the child not to be linked by name to the biological father:

In my view, in structuring the provisions as it did, the legislature made a policy decision to allow the mother to have the ultimate ability to determine the surname of the child in recognition of the fact that there will be circumstances where a mother will have the ongoing responsibility for the child, and should not be forced to have the child linked by name with the biological father. Counsel for the appellant acknowledged that, for example, in the case of rape, a mother should not be forced to have the child bear the surname of the father. Yet there is no provision in the Act for specific exceptions. It is the ability of the mother to treat the father as "unacknowledged by" her which accomplishes that legitimate legislative goal (at. Para 36).

[34] Within its reasons, the Court of Appeal applied the appeal court decision of Trociuk v. British Columbia (Attorney General) (2001), 2001 BCCA 368, 200 D.L.R. (4th) 685 (B.C.C.A.), wherein the British Colombia Court of Appeal interpreted similarly worded legislation. That decision was later overturned by the Supreme Court of Canada on the basis that the relevant portions of the B.C. Vital Statistics Act infringed s. 15 of the Charter.

[35] Leave to appeal Kreklewetz on similar grounds as were heard within the British Columbian Appeal was refused. See 2003 CarswellOnt 266 (S.C.C.)[^4]

[36] Thus the provisions within the Ontario VSA continue. A father can have his own particulars added to a birth registration through a declaration of paternity, (as above) but there is no mechanism for an unacknowledged father to amend his child’s surname.

Constitutionality of the Ontario Vital Statistics Act Not Before the Court

[37] Mr. S.D.G. asks that I make a finding that the Ontario VSA is unconstitutional. He makes no arguments per the Charter of Rights. Neither has he given notice of a constitutional question.

[38] Absent notice of a constitutional question, and without any submissions from the moving party, the court cannot consider in these circumstances whether the Ontario VSA violates the Charter of Rights and Freedoms.

[39] Justice Wolder of the Ontario Court of Justice has recently considered the constitutionality of the Ontario VSA as it relates to birth registration particulars. In C. (D.) v. A. (W.) 2003 CarswellOnt 5070 adoptive parents filed an application for adoption without giving notice to the father, as he was unacknowledged on the birth registration. In the proceeding, the father challenged the portions of the Vital Statistics Act which allowed a mother not to acknowledge the father, and thereby to exclude his information from the registration of birth.

[40] Wolder J. ultimately found that the corrective mechanism within the Children’s Law Reform Act and section 9(7) of the VSA to have the unacknowledged father obtain a declaration of parentage and thereafter apply to have the registration of birth amended satisfied him that:

…. there exists sufficient differences in Ontario's Vital Statistics Act to save it from attack pursuant to section 15 of the Canadian Charter of Rights and Freedoms, being Part I of Schedule B to the Canada Act 1982, c. 11 (U.K.), and that the concerns raised in Trociuk v. British Columbia (Attorney General), supra do not apply here.

Relief Sought

[41] Mr. S.D.G. does not differentiate between a declaration of parentage that amends a birth registration, and a contested change of name. He may be under a mistaken view that the former permits the latter. He has not asked for a declaration of paternity under the CLRA that can be registered per section 9(7) of the VSA. Should he wish to do so, he may by 14B Motion to my attention on 30 days notice to Ms. A.S..

[42] Only two remedies allow an unacknowledged father to have his child’s name changed: the mother’s consent or the exercise of a court’s parens patriae jurisdiction to order that the Registrar General amend the registration of a child’s surname.

[43] In Gallant v. Lewis, 2008 36912 (ON SC), 2008 CarswellOnt 4384 (Ont. S.C.J.) the parties had separated while the mother was expecting. Against his wishes, the mother did not inform the father when she gave birth. She then filed a statement of live birth leaving the father’s information blank and giving the child only her surname. Within nine days of the child’s birth the father obtained an order on consent for access. He later applied to the court to have his surname hyphenated to the child’s maternal surname. The matter came before Quinn J.

[44] In considering the operation of the Ontario VSA, Justice Quinn acknowledged that there was no statutory authority for the relief sought by the father. Nonetheless, he ordered that the Registrar General amend the child’s surname to include the hyphenated surnames of both parents pursuant to his parens patriae jurisdiction.

[45] In reaching his decision, Justice Quinn ultimately concluded that it was in the child’s best interests to amend the surname. At the same time (and in the same paragraph) Justice Quinn accepted that there would be “obvious instances where it will be entirely appropriate for a father to be unacknowledged, and for a child to be given only the surname of the mother.”

[46] The approach in Gallant was followed in Ryan v. S.D.G. 2011 ONSC 3277. In his reasons, Maranjer J. also found it appropriate to use his parens patriae jurisdiction to order the Registrar General to amend the registered surname of the child. He then commented on circumstances in which a mother might reasonably exclude a father from participating in the child’s name, such as when he has expressed no interest in raising or supporting the child, or has steadfastly denied paternity.[^5]

[47] In Garland v. Brouwer 2011 CarswellOnt 13318 the court again exercised its parens patriae jurisdiction to order that the registration of a child's name at birth be amended to include a hyphenated name. Justice Hendersen states at paragraph 63:

A child's name as shown on the birth registration is recognition of the child's biological ties to his or her biological parents. A birth registration is not merely an instrument of recording a birth; it is evidence of the biological ties between a parent and a child, and a means of affirming those biological ties. Where the name of the father is excluded from the birth registration, it would be perceived that the father's biological ties to the child are less important than the mother’s biological ties to the child.

Parens Patriae Jurisdiction of the Court

[48] Parens patriae is the power of the court to act in the stead of a parent for the protection of a child: A.C.B. v. R.B., 2010 ONCA 714, at para. 23.

[49] The power derives from the earliest stages of English law in which the sovereign, as parens patriae, was vested with the care of persons who were not able to take care of themselves; such as the mentally incompetent. In the seventeenth century the power was extended to children under wardship, and it has continued to evolve in order to protect those who cannot care for themselves.

[50] Thus, courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare.”

[51] The situations in which parens patriae has been exercised are not always consistent, but it is well settled that the jurisdiction is one of last resort, that it is to be used with caution, and only in accordance with its underlying principle: to do what is necessary for the protection of the person for whose benefit it is exercised and not for that of others.

[52] Necessity may also be found within legislative gaps. Rosenberg J.A. stated at para 27 in A.A. v. B.B., [2007 ONCA 2] that, “The court’s inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap.”

[53] In determining whether there was a legislative gap, he went on to consider whether the applicable statute in that case, the CLRA was intended to be a complete code with the result that any gap was deliberate. Were it deliberate, then it would be an inappropriate exercise of parens patriae jurisdiction to second guess a decision within the mandate of the statutory authority.

[54] As the Court of Appeal indicated at para. 30 in A.C.B., supra, assessing whether parens patriae should be exercised is a “very fact specific exercise.” The modern view is that this exercise typically fits within one of the following traditional scenarios:

a. Where there is an unintentional legislative gap: see e.g. A.A. v. B.B., supra, at para. 27. This gap can be direct or indirect: see e.g. M.D. v. L.L., 2008 9374 (ON SC), [2008] O.J. No. 907 (S.C.);

b. Where the child is in danger: see e.g. A.A. v. B.B., at para. 27; R. v. J.N., [2008] O.J. No. 3638 (S.C.);

c. In a judicial review of the exercise of statutory power by an administrative authority: see e.g. Beson v. Newfoundland (Director of Child Welfare), 1982 32 (SCC), [1982] 2 S.C.R. 716; or

d. Where it is necessary to achieve the paramount objective of the applicable legislation: see e.g. A.A. v. B.B., at para. 40.

[55] In summary, the power of parens patriae authorizes a court through its inherent jurisdiction to intervene and rescue a child at risk. It can sometimes be used to bridge a legislative gap so that the underlying purposes of the legislation are met. It does not confer supplemental jurisdiction to rewrite legislation or procedure.

Analysis

[56] The Ontario VSA affords a mother the unfettered choice whether or not to acknowledge the father on her child’s birth registration. An unacknowledged father may subsequently obtain an order to add his particulars to the birth registration under section 9(7) of the VSA; but the Act provides no mechanism for him to amend his child’s surname.

[57] Counsel for the mother rests on this point and asks that Mr. S.D.G.’s claim be dismissed.

[58] A number of articles and several Ontario courts have criticized this aspect of the Ontario VSA as contrary to the principles set out by Deschamps J. in the Supreme Court of Canada decision of Trociuk S.C.C. (supra).

[59] Mr. S.D.G. picks up on this criticism, particularly as incorporated into the reasons of Justice Quinn in Gallant. He “leaves it with the court” to sort out.

[60] In the absence of any helpful submissions from Mr. S.D.G., it is tempting to simply grant the dismissal sought by counsel for Ms. A.S..

[61] At the same time, subsequent cases have been decided contrary to the ordinary operation of the VSA by courts applying their parens patriae jurisdiction. In my view, a child’s best interests are always before the court, even when poorly articulated. I will therefore proceed with an analysis of Mr. S.D.G.’s claim to change his daughter’s surname.

[62] I begin my analysis with the view that the VSA must be interpreted as providing a straightforward scheme for birth registration and the naming of children in which the court has no statutory jurisdiction to interfere. The VSA is a complete code for the registration of live births. It does not provide for any appeal of the decision of the Registrar.

[63] By having no means of appeal, or even criteria by which a mother is to acknowledge, or not acknowledge a father, the legislature has clearly intended to grant mothers an unfettered discretion in the naming of their children. Thus, I do not find that there is an unintended legislative gap or that an exercise of parens patriae jurisdiction is necessary for the legislation to achieve its paramount objective.

[64] How does a court determine the second scenario: whether a child is at risk of harm, or in danger?

[65] In my view, the court should determine whether there is a realistic prospect that the lack of a shared paternal surname will diminish the father-child relationship; or that it will negatively affect the child’s sense of identity. Such determinations are specific to the child’s individual circumstances, but must also be answered in contemplation of the societal norms in which the child will be raised.[^6]

[66] Such a test is consistent with decisions since Kreklewetz in which the court exercised its parens patriae jurisdiction to amend a child’s surname. In each case the court looked to the child’s best interests and specifically, to the risk to the child in not making an order to amend a surname, while acknowledging that there are proper reasons for excluding an unacknowledged father from the act of naming a child.

[67] In this case it cannot be said that the lack of a shared surname will diminish A.K.N.S. relationship with her father. Nor does Mr. S.D.G. make any such suggestion. He did not initially pursue a relationship with his daughter, and to be fair, may not have been in a position to do so during early periods in A.K.N.S. life when he was incarcerated, or A.K.N.S. was in care. Since August 2013 he has enjoyed more regular periods of access time with her. The supervision of his access is to be reviewed upon a determination of his present charges.

[68] Neither can it be said that the lack of a shared paternal surname will negatively affect A.K.N.S. sense of identity. During her most formative years A.K.N.S. has developed her identity as A.K.N.S.. All her records and documents are in her maternal surname, which she shares with two half siblings. Her name is an important element of stability in what has been a chaotic start to life.

[69] Mr. S.D.G. did not place A.K.N.S. surname in issue until July of 2014, after the first calling of the matter for trial. By that time A.K.N.S. was over six years old. She is now approaching seven years of age. By not raising this issue earlier, and in a more fulsome manner, I find that it would be a change in name at this point in A.K.N.S. life that would cause harm, rather than a continuation of her present maternal surname.

[70] I do not find that there is any risk of harm to A.K.N.S. should her maternal surname continue. I therefore decline to exercise my parens patriae jurisdiction. Absent any statutory mechanism per the VSA, Mr. S.D.G.’s claim to change A.K.N.S. surname must be dismissed.

Costs

[71] The respondent has been the successful party. Costs submissions are to be forward within 20 days of release of this decision. Response 20 days thereafter, reply if necessary in 10 days. Submissions are limited to three pages exclusive of any Offers to Settle, or Bills of Cost.

Justice H. McGee

Released: February 3, 2015

[^1]: Largely on the concern that the OCL had not been able to provide assistance with an updated report.

[^2]: In June and September of 2014 Mr. S.D.G was charged with sexual assault on persons under the age of sixteen. Those charges are presently before the court.

[^3]: Formerly 9(12) which states that on receiving a certified copy of an order under section 4, 5, or 6 (child's parentage), of the Children's Law Reform Act respecting a child whose birth is registered in Ontario, the Registrar General shall amend the particulars of the child's parents shown on the registration in accordance with the order.

[^4]: Interestingly, Elizabeth Mourao writes in “A Parent’s Right – The Name Game” Volume 25, No. 1 - October 2012 of the OBA Family Law Section Newsletter that it was hoped at the time that Kreklewetz would be heard by the Supreme Court of Canada contemporaneously with Trociuk. However, leave was refused by the Supreme Court on Kreklewetz. The Supreme Court then went on to hear the British Columbia case. The Court declared the British Columbia Vital Statistics Act provisions unconstitutional. The B.C. statute has since been amended.

[^5]: At paragraph 11

[^6]: For example, there may be circumstances in which the lack of a paternal surname may place a child in an awkward or outlier position. At the same time, many mothers do not share a surname with their child (ren) and nothing of concern follows.