Court File and Parties

KINGSTON COURT FILE NO.: 303/14 DATE: 20190517 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: H.H. Applicant – and – J.S. Respondent

COUNSEL: Applicant is self-represented Elizabeth T. French, for the Respondent

HEARD: April 15, 2019

Endorsement on Motion to Change

TROUSDALE J.

[1] On November 16, 2018 the parties settled on consent all of the issues in this Motion to Change with the exception of one issue. I heard the one remaining issue in this Motion to Change on affidavit evidence on the consent of the parties. The Respondent mother is requesting to change the surname of their child to include the Respondent mother’s surname.

Background

[2] The parties are the biological parents of the female child R., born […], 2010. The parties were never married to each other.

[3] I am not aware of the actual date when the parties separated, but the parties entered into a final order on consent made by me on September 18, 2014. That order provided that the Applicant father (herein the “father”) and the Respondent mother (herein the “mother”) shall have joint custody of the aforesaid child and that each parent shall have the right to receive information by medical and educational providers to the aforesaid child.

[4] On August 26, 2015, on Motion to Change of the father, the parties consented to a temporary order made by me setting out the father’s parenting time with the child on alternating weekends and every Wednesday overnight.

[5] The matter was ultimately set for a four day trial to commence the week of April 25, 2016. However, at a Trial Management conference on March 8, 2016, the parties settled all issues and agreed to a consent final order made by Justice Robertson.

[6] The father commenced a Motion to Change on June 13, 2017 to expand his parenting time with the child to include two of his important religious holidays each year as well as an expansion of other holiday parenting time.

[7] On January 23, 2018, Justice Minnema made an order requesting that the Office of the Children’s Lawyer provide a clinical assist to avoid this case becoming a high conflict case.

[8] On August 1, 2018, the Office of the Children’s Lawyer served a report pursuant to s. 112 of the Courts of Justice Act dated July 30, 2018, which report was prepared by a clinician on behalf of the Office of the Children’s Lawyer.

[9] In September, 2018, the mother requested through her counsel to the father’s counsel that the child’s surname be changed to add the mother’s surname being S (rest of mother’s surname not shown by me) followed with a hyphen prior to the father’s surname, such that instead of the child’s surname being H (rest of father’s surname not shown by me), it would be S – H (rest of surnames not shown by me).

[10] On November 16, 2018, on oral motion of the mother, Justice Minnema granted the mother leave on consent to amend her Response to the Motion to Change to claim that the child’s name be changed by adding the mother’s surname. Justice Minnema also made an order that the Office of the Children’s Lawyer be requested to address the issue of the name change of the child with the anticipation that the same clinician would be appointed. On consent, Justice Minnema made a Final Order on consent of the parties to all other issues outstanding between the parties.

[11] On December 20, 2019, the Office of the Children’s Lawyer responded that they decided that they could not provide service at this time and stated:

“An evaluation under s. 30 of the children’s law Reform Act, or a report under s. 112 of the courts of Justice Act, was already completed in the year preceding the request for the involvement of the Office of the Children’s Lawyer. As there have no significant changes in the circumstances since the completion of the previous report, we have determined that our involvement would not improve the child’s situation at this time.

The Office of the Children’s lawyer receives many requests for our involvement regarding custody and access matters. Unfortunately, due to limited resources we are unable to accept all of these requests and therefore we are declining involvement.”

[12] On February 20, 2019, the parties consented to a hearing date being set for April 15, 2019 for a one hour hearing on the proposed name change for the child on affidavit evidence. A litigation schedule for the filing of affidavit material was set and it was noted in the endorsement “Factums required by the rules”.

[13] On April 15, 2019, I heard oral argument on the issue of the mother’s request to change the child’s surname. The mother had served and filed a factum but the father had not done so. He apologized and indicated he did not realize he had to do so. The mother argued that as the father had not complied with the court order to file a factum, he should not be permitted to argue the case. However, I ruled that the father should be permitted to proceed. Subsequently, I permitted the mother to orally amend her factum.

[14] The mother’s factum did not contain any caselaw and neither party presented any caselaw at the hearing of the motion. As I had looked at some caselaw in preparation for the motion, I provided each party with a copy of the caselaw I had looked at, and at 12:00 noon I adjourned the matter to 3:00 p.m. to give the parties an opportunity to return to make submissions regarding those cases if they wished, as well as for them to provide me with any further caselaw each of them thought was relevant and to make submissions on that caselaw. I heard argument on the caselaw after 3:00 p.m. on April 15, 2019 and I reserved my decision.

Positions of the parties

[15] The mother’s position is that as a result of discussions initiated by the child about her surname, the mother requested to change the child’s surname to include the mother’s surname hyphenated either before or after the father’s surname. She states in her affidavit sworn March 5, 2019 that she requested that her surname be shown first followed by a hyphen and the father’s surname so that the father would still see his surname at the end of the child’s surname. The mother’s surname is the surname of the mother’s biological father.

[16] The mother states in paragraph 8 of the aforesaid affidavit that “I would not have sought a change in R’s name if it was not my impression that it is important to her. She is fully aware that her surname and my surname are not currently the same.”

[17] In her affidavit sworn April 1, 2019, the mother submits that in addition to responding to the child’s direct communication to the mother that she wishes to add the mother’s surname to her current surname, adding the mother’s surname to the last name of the child would provide an added level of security. In that regard, the mother states that historically the father has refused to return the child to her care and it required police intervention for the child to be returned to her.

[18] If the father does not consent to the change of the child’s surname, the mother seeks an order dispensing with the father’s consent to the requested change to the child’s surname.

[19] The father’s position is that the child has never mentioned any issues to him regarding her current legal last name and that she is happy with her surname. He submits that it is not in the best interest of the child that her surname be changed when the 8 year old child has been known at school, in sports, by her friends, on awards and certificates, in her passport, and so forth by her current surname H for her whole life thus far.

[20] The father questions the mother’s motive in wishing to change the child’s name and the timing of the request. He points out that the mother herself is known by her biological father’s name even though her father and mother are not together.

[21] The father seeks that the mother’s claim be dismissed to allow the child to make her own choice of surname when she is of proper age.

Issues

1. Is it in the best interests of the child to have her surname changed from H to S-H?
2. Should the required consent of the father to a change of the child’s name be dispensed with?

Analysis

[22] Section 5 of the Change of Name Act, R.S.O. 1990, c. C.7, as am. (herein “the Act”) governs an application to change a child’s name and states as follows:

5 (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.

(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.

(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

(c) the child, if the child is twelve years of age or older.

(2.1) If a person is declared under section 10, 11 or 13 of the Children’s Law Reform Act to be a parent of a child and obtains an order under section 17 of that Act changing the child’s surname, an application under subsection (1) also requires that person’s written consent.

(3) Clause (2) (c) does not apply if a legally qualified medical practitioner states in writing, not more than one year before the application is made, that in his or her opinion the child does not have capacity to 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.

(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.

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

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

(7) An applicant who proposes to change the child’s surname to the surname of the applicant’s spouse or of a person with whom the applicant has filed a joint declaration that has not been revoked shall give the spouse or other person notice of the application.

[23] As the father and the mother in the case before me have joint custody of the child, the mother requires the written consent of the father to change the name of the child pursuant to subsection 5.(2)(a) of the Act. Pursuant to subsection 5.(2.1)(4) if the father refuses to consent, the mother may apply to the court for an order dispensing with that consent.

[24] Pursuant to subparagraph 5.(2.1)(5) of the Act the court shall determine an application to dispense with the required consent in accordance with the best interests of the child.

[25] After her birth, the child was registered by the father and the mother with the father’s surname as the child’s surname. Accordingly, the mother and the father chose at that time to register the child with the father’s surname. The child has been known by that surname for almost 9 years now.

[26] The mother alleges that the child wishes to have the surname S-H. The father alleges that the child has never told him that she wants to change her surname. The mother’s response to that is the child has told her that the child would never discuss this with her father as he is not a safe person to speak with as he will get mad at the child.

[27] Both parties consented at the hearing to my reading the s. 112 Report of the Office of the Children’s Lawyer dated July 30, 2018. On page 6 of the report the clinician reported that the child presented in all settings as a happy, intelligent and social little girl.

[28] On page 6 of the report the clinician indicated that the child stated that she is never afraid with either of her parents and that she loves them both.

[29] The clinician reported on page 7 of the report that each of the parties has established a home for the child where the child was observed by the clinician to be happy, healthy and appeared to be advancing at age appropriate levels.

[30] The issue of whether this child’s surname should be changed is a relatively new issue in this court proceeding, having only been raised by the mother through her lawyer to the father’s lawyer in or about September, 2018. It was not something that came up when the father started his Motion to Change on June 13, 2017 nor did it come up while the Office of the Children’s Lawyer was involved in 2018 up to the delivery of the report on August 1, 2018.

[31] If the issue had been raised when the Office of the Children’s Lawyer had been involved with the parties earlier in 2018, there would likely have been independent evidence of the child’s understanding of the implications of a name change and of her wishes in that regard. Unfortunately, but understandably as they had just completed a s. 112 of the Courts of Justice Act report on July 30, 2018, the Office of the Children’s Lawyer was not willing to get re-involved.

[32] The mother and the father have joint custody of the child. The mother and the father do not agree on whether the child’s surname should be changed.

[33] Justice Belch stated in the case of Lyon v. Lyon, [2004] O.J. No. 1645 at paragraph 47:

Those who practice family law know that changing a child's name is an emotional flashpoint to be avoided if at all possible. These parties recognize, as have earlier court decisions, that education, health, religion and residence are major child rearing decisions. I find that the issue of a child's surname is also a major child rearing decision and should be added to that list.

[34] As in the case before me, in the Lyon case, the mother wanted to change the child’s surname by adding her maiden name with a hyphen prior to the father’s surname which was the child’s current surname. Justice Belch stated at paragraph 46:

It is my decision that Jacob's name not be changed to Kemp-Lyon. Firstly, the affidavit material does not satisfy me on a best interests test that Jacob's name needs changing. Jacob is five years old now. He knows who he is and what his name is.

[35] In the case of Herniman v. Woltz, [1996] O.J. No. 1083, Justice Granger found that changing the surname of the child is an incident of custody. Justice Granger dealt with the issue of the wishes of a 7 year old child whose mother had applied to change the surname of the child to the surname of her new husband and herself. At paragraph 8 Justice Granger stated:

In a case such as this the wishes of the child given her age should be given little weight. September is 7 years old and it is difficult for me to accept that she understands the implications in changing her surname. Does she understand that the changing of her surname is a permanent change or does she believe that the change is temporary in the sense that when she is 14 or older she can simply revert to the surname of Herniman? In my opinion, any proposed change in the surname of the child must be carefully considered in order to ensure that such name will be beneficial to the child throughout the child's lifetime. A child should not automatically have his or her surname changed to conform with his or her mother's present surname.

[36] Justice Granger concluded that he felt that the child should wait until she is older to make such a serious and permanent decision and that any proposed change of name should be delayed until the child can play a meaningful part in the decision.

[37] In the case of Gallant v. Lewis, Justice J.W. Quinn found that the surname of the almost one year old child should be changed from the mother’s maiden name which she had registered the child with, without acknowledging the father in the birth registration, to include the hyphenated surnames of both the parents in alphabetical order.

[38] Counsel for the mother brought to my attention the case of Garland v. Brouwer, 2011 ONSC 6437. In that case, the child was two years old. The mother had registered the child under her surname and had not acknowledged the father on the birth registration. Justice J.R. Henderson at paragraph 63 stated:

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.

[39] Justice Henderson ordered that the child’s name be changed to include the hyphenated surnames of both his mother and his father.

[40] I note that the Gallant case and the Garland case both involved fathers who had been excluded by the mothers from the birth registration process and the determination of the child’s name in the first instance, and that both those cases involved very young children who would not likely know their birth surname at that age. In the case before me, however, the parties jointly participated in the child’s birth registration. Further, the child is 8 years old and knows what her name is.

[41] In my view, the decision to change the child’s name is an important and permanent legal decision with implications and consequences which need to be fully considered by both the parents and the child. On the evidence before me, I am not satisfied that the 8 year old child has an informed, independent and consistent wish to change her name, nor that she knows and understands the implications and consequences of changing the surname she has had her whole life. The child has been identified by family and friends, at school, and in her activities, and in the community under her current surname for over 8 years.

[42] I do not agree that the change of name would provide an additional level of security as argued by the mother.

[43] Changing the child’s name is an incident of custody. The father who has joint custody of the child does not consent to the proposed name change. I am not satisfied on the evidence before me that it is in the best interests of the child that her surname be changed at this time. I am not satisfied on the evidence before me that it is in the best interests of the child at this time that I dispense with the requirement for the father’s written consent to the name change for the child requested by the mother.

[44] Accordingly, the mother’s claim for an order changing the child’s surname to S-H at this time is dismissed as on the evidence I do not find it is in the best interests of the child that her name be changed at this time.

Costs

[45] If the parties are unable to settle the issue of costs between them and wish to address the issue of costs with me, the Applicant may serve and file written submissions as to costs of no more than three pages, double spaced, and a copy of any offers to settle and a bill of costs by June 3, 2019. The Respondent may serve and file written costs submissions of no more than three pages, double spaced, and a copy of any offers to settle and a bill of costs within fifteen days after she is served with the Applicant’s costs submissions. The Applicant may serve and file written reply submissions of no more than two pages, double-spaced within 5 days after he is served with the Respondent’s costs submissions. If no submissions are filed within the aforesaid time limits, there shall be deemed to be no order as to costs.

Order

[46] Order to go accordingly.

Justice A. C. Trousdale Released: May 17, 2019