Court File and Parties

COURT FILE NO.: FS-18-00006080-0000

DATE: 20210409

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Rocky Bova, Applicant

AND: Cheryl Vandervliet, Respondent

BEFORE: C. Horkins J.

COUNSEL: Anthony Di Battista, for the Applicant

Christine Marchetti, for the Respondent

HEARD at Toronto: March 23, 2021

REASONS FOR DECISION

[1] There are two motions to be decided. The Applicant, Rocky Bova (the “father”) brings a motion for an order to change the last name of the parties’ child. The Respondent Cheryl Vandervliet, (the “mother”) seeks enforcement of terms in the final consent order of Nakonechny J. dated February 1, 2021.

Change of Name Motion

[2] The father seeks an order to change the child’s last name. He wants his surname to be hyphenated with the mother’s last name. If allowed, he says that the mother can choose to have her surname first or last in the hyphenated name.

Background

[3] During a short relationship, the parties had a child who was born in October 2012.

[4] The mother disputed the Applicant’s claim that he was the father. She registered the child’s last name as Vandervliet. The father’s access to the child was very limited.

[5] In 2015, the father issued the Application seeking custody, access, a declaration of parentage and an order that the child’s last name be changed to Bova.

[6] The issue of parentage was resolved in 2016 when the mother finally agreed to DNA testing. The result confirmed that the Applicant is the birth father. Although the parentage issue was resolved, the parties remained mired in conflict. The mother continued to restrict the father’s access to the child. For some time, the minimal access that the mother allowed was supervised. Whether this was necessary is not before this Court. The father did not have unsupervised access until the summer of 2018.

[7] On October 29, 2018, Vallee J. issued a final consent order that gave the mother sole custody of the child (“Vallee order”). The Vallee order gave the father unsupervised access time, but all exchanges had to be supervised. No overnight access was provided. The Vallee order directed that in January 2020, there would be a “full review” of the access, including overnights.

[8] In September 2020, the parties agreed to one overnight visit in October, November and December, respectively. Justice Diamond vacated a pending trial date and recorded that the remaining parenting issues (location of access exchange, identity of designate to pick up and drop off child and name change) could proceed to a summary judgment motion. The parties signed Minutes of Settlement in November 2020. These Minutes increased the father’s overnight access and settled most of the parenting issues. An order has yet to be issued. Subsequently, the parties settled all remaining parenting issues except the name change.

[9] After six years of seeking better access, the father’s access has increased, and he now has overnight access with the child. The evidence shows that the child has bonded with the father’s family, including his children from another relationship. The bond between the father and the child has strengthened. He describes this as a material change and relies upon it to support the requested name change.

[10] To respect and further his bond, he wants the child’s last name to be hyphenated as Vandervliet-Bova or Bova-Vandervliet.

Analysis

[11] The starting point is the specific relief requested in the father’s notice of motion. He seeks the following orders:

1. An order requiring the mother “to submit an application to the Registrar General to change” the child’s last name to Vandervliet-Bova or Bova-Vandervliet.

2. “In the alternative or in addition … an Order directing the Registrar General to change the child’s surname” to one of the hyphenated options.

3. “In the alternative, an Order permitting the [father] to make an Application directly to the Registrar General under the Change of Names Act and dispensing with the [mother’s] consent for the proposed name change.”

4. “If necessary an order issuing a declaration that there has been a material change of circumstance permitting the [father] to bring this motion in the sole custodial issue of the proposed name change.”

5. An Order “prohibiting the [mother] from changing the child’s name after relief is granted in this notice of motion.”

[12] The father states that two pathways allow him to seek a name change. First, s. 5 of the Change of Name Act, R.S.O. 1990, c. C.7 (the “Act”) and second, the material change set out above. Neither supports the relief the father seeks. My reasons follow.

The Change of Name Act

[13] The change of a child’s name is dealt with in s. 5 of the Act. The Act allows a person with “lawful custody” to apply to the Registrar General for a name change. Subsection 5(2) states who must consent to the application. Subsection 5(4) provides that if the required consent cannot be obtained or is refused, the person seeking the change can apply to the court for an order dispensing with that consent.

[14] The relevant parts of s. 5 are set out below.

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.

(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.

[15] The Act does not provide the father with a statutory pathway for changing the child’s surname. Under the Vallee order, the mother has sole custody of the child. While she is required to consult with the father on all major decisions, her decision prevails. Of note, the father is not seeking to change the Vallee order.

[16] Under the Act, only a person with “lawful custody” can apply to the Registrar General for a change of name. The father does not have custody nor any decision-making power under the Vallee order. As an access parent, he cannot rely on this Act to seek a name change.

[17] As stated in Felix v. Fratpietro (2001), 2001 ONSC 37828, 13 R.F.L. (5th) 54 (Ont. S.C.) at para. 22: “[t]he cases are clear that a name change is an incident of custody. That is made abundantly clear by virtue of the Change of Name Act itself which requires consent from a custodial parent, but only notification to an access parent.”

[18] Furthermore, the father is not a person whose consent is required under s. 5(2), assuming the mother had applied for a name change.

[19] The only reference in s. 5 to an access parent is found in s. 5(6). This subsection provides that the access parent has a right to be given notice of any application for a change of name.

[20] I now turn to the specific orders the father seeks.

[21] First, the father seeks an order requiring the mother to apply to the Registrar General for a name change. The mother is not seeking to change the child’s name and does not consent to the father’s request that the name be changed. Since the Vallee order gives the mother final decision-making authority, this order precludes the relief requested.

[22] Second, the father seeks “an Order directing the Registrar General to change the child’s surname” to one of the hyphenated options. As explained above, the Act does not give an access parent the right to seek such an order. Furthermore, the court only becomes involved when a person with “lawful custody” (such as the mother) cannot obtain the required consent of a person in s. 5(2) (not the father). In such case, the person with “lawful custody” may apply to the court to dispense with the required consent.

[23] Third, the father seeks an Order permitting him to make an Application directly to the Registrar General under the Act and dispensing with the mother’s consent for the proposed name change. The Act does not give the access parent the right to make this Application: Felix v. Fratpietro at para. 13.

The Material Change

[24] The father states that the material change in his bond with the child is a stand-alone basis for relief. He says he would not have consented to giving the mother sole custody in the Vallee order if he had enjoyed the bond he now has with the child. While he states that the bond with his son has materially changed, he is not seeking to change the Vallee order.

[25] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) states that a material change is required to vary a parenting order:

29(1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[26] The father relies on s. 29 of the CLRA and the decision of Roy-Bevington v. Rigden, 2017 ONCJ 730. In that decision, the Court summarized the legislation and case law pertaining to the change of a child’s name. The father relies on point 3 in para. 19 that is emphasized below:

1. In cases where the custodial parent wishes to apply for the name change, no orders under s. 28(1)(b) are necessary. The sole custodial parent does not need the other parent’s consent under the Change of Name Act;

2. Where there is an existing final order in favour of a custodial parent and that parent wishes to apply to change the child’s name, the non-custodial parent’s application to prohibit a name change under s. 28(1)(b) will fail unless he or she can establish there has been a material change in circumstances since the final custody order within the meaning of s. 29 of the Children’s Law Reform Act such that the Court may then make an order under s. 28(1)(b);

3. Where there is an existing custody final order in favour of a parent and the non-custodial parent wishes to apply to change the name, the non-custodial parent must establish there has been a material change in circumstances since the final custody order within the meaning of s. 29 of the Children’s Law Reform Act before the Court may then make an order under s. 28(1)(b);

4. In cases of joint custody, no orders under s. 28(1)(b) are necessary. The parent wishing to apply for the name change can apply to dispense with consent of the other parent under s. 5(4) of the Change of Name Act if consent is not forthcoming. The other parent can resist the application and/or cross-apply to prohibit a name change under s. 28(1)(b);

5. In cases where custody is not finally resolved, the parent wishing to apply for a name change must have a claim for custody, or joint custody, or a claim relating to certain “incidents of custody” before the Court;

6. If there is a temporary custody order in place, any issues relating to the child’s name can be dealt with at trial, or in appropriate circumstances, on a motion. However, the material change test may apply on an interim basis depending on who is the moving party; and

7. Once any threshold issues are determined, the governing test, either on applications to dispense with consent under the Change of Name Act or when claims under s. 28(1)(b) are advanced is the best interests of the child test.

[Emphasis added.]

[27] Paragraph 19, point 3 does not assist the father. It does not stand for the proposition that proof of a material change, on its own, entitles the father to seek a name change. It speaks to the situation where one parent has sole custody (or what we now call sole decision-making power) and how the other parent might gain the right to request a name change. Specifically, there must first be a motion under s. 29 of the CLRA to vary an existing order (in this case the Vallee order). The test in s. 29 must be met before the order is varied. If a variation is granted, the court’s powers under s. 28 apply. The court could, for example, make a new parenting order.

[28] In this case, the father could have brought a motion to vary the Vallee order under s. 29 but he did not do so. He specifically stated during the motion that he chose not to seek a variation. Whether such motion would succeed is not before this Court.

[29] In summary, unless the Vallee order is varied to provide the father with decision making power such that he falls within ss. 5(1) and (1.1) of the Act, there is no basis in law to grant the relief he seeks.

Mother's Enforcement Motion

[30] The mother states that the father has not complied with the February 1, 2021 order of Nakonechny J. (“Nakonechny order”). Her motion seeks orders directing that the father comply. I will deal with each item separately.

Dental Expenses/Guitar Lessons

[31] The mother has paid $803 for dental treatment and $756 for guitar lessons. She states that the father is required to pay 50% of these s. 7 expenses pursuant to para. 2 of the Nakonechny order that states:

The Applicant shall contribute towards 50% of the child’s agreed upon section 7 expenses, which expenses shall be agreed upon in writing and which consent shall not be unreasonably withheld. The child’s present section 7 expenses include but are not limited to occupational therapy, tutoring with Oxford or equivalent, and medical and dental expenses not covered by OHIP or extended benefits.

[32] The father has not paid these expenses. I will deal with the dental expenses first.

[33] The father states that the dental expenses are fully covered under his benefit policy. The expense is paid by the mother and submitted for reimbursement to the insurer. Paragraph 4 of the Nakonechny order requires the father to name the child on any plan of extended health and dental benefits that he has through work. He has complied with this part of the order. The second part of this paragraph requires the father to provide the mother with the ability to make claims directly to any plan he has and to provide her with a copy of the benefit book and a benefit card for the child.

[34] The father states he has given the mother the benefit book and card at least three times. It was agreed on the motion that the mother has these documents. The father insists that the mother can make claims directly, but she disagrees. She says that the father has not authorized this with the insurer. In fact, the mother has made claims directly in the past. At this point, the mother insists that the father must call the claims administrator and confirm that she has authority to submit claims directly. The father has agreed that he will call and take whatever steps are required to make sure that the mother can submit claims directly. The $803 has not been submitted and this must be done as soon as possible.

[35] The dental dispute should not have happened. They each blame the other, but it is not possible on this paper record to conclude that the father is to blame. This unnecessary dispute is typical of the conflict they have created.

[36] Turning to the guitar lessons, a motion should not have been required. The child has been receiving occupational therapy to help improve his fine motor skills. There is no dispute that he requires therapy. Before the COVID-19 pandemic, an occupational therapist treated the child at home. These visits were suspended after the onset of the pandemic. To replace this therapy, the mother enrolled the child in guitar lessons. This was something that the therapist supported. From October 2020 to March 2021, the child had six lessons. Each cost $126 for a total of $756. The mother asked the father to pay his 50% share of this expense ($378), but he refused on the basis that he could not afford to do so. Going forward, she asks that he pay his 50% share at $63 a month.

[37] The Nakonechny order requires the mother to obtain the father’s written consent if she seeks his 50% contribution. The father’s consent cannot be “unreasonably withheld.” A proven inability to pay may justify withholding consent, but that did not happen in this case. The father may well have other expenses as he claims, but I am not satisfied that he was unable to pay 50% of the guitar lessons. On the evidence, I find that his consent was unreasonably withheld.

[38] During the motion, the father agreed to pay 50% of the lesson expenses incurred to date. He also agreed to continue paying 50% of these lessons for an additional year subject to the following:

1. The lessons will continue at the same frequency and cost. If either change, the mother will require the father’s consent if she is seeking his 50% contribution.

2. When the child’s in-person occupational therapy resumes, the mother shall review with the therapist whether the guitar lessons should continue and shall keep the father informed.

3. If at the end of one year, the mother decides to continue the lessons, she shall comply with para. 2 of the order and seek the father’s consent.

4. The father shall also comply with this order. His consent shall not be unreasonably withheld.

Proof of Life Insurance

[39] The father has not complied with para. 3 of the Nakonechny order. He has obtained life insurance with a face value of $300,000, but this is a policy that covers all his children. The beneficiary of that policy is an unknown person. The purpose of the order is to secure the child support that the father pays to the mother. He is required to maintain life insurance of $250,000 that names the mother in trust for the child. He has not complied and must do so no later than April 20, 2021.

The RESP

[40] Paragraph 5 of the Nakonechny order states that the father shall pay the mother $30,000 in support arrears. This amount is paid in two ways. First, para. 5(a) requires the father to pay the mother $20,000. This has been done. Second, para. 5(b) requires the father to pay $10,000 towards a RESP for the child by September 28, 2020. This deadline predates the order and might be an error. Regardless, it is agreed that the money must be paid into a RESP. The parties cannot agree on a RESP. The mother opened a RESP for the benefit of the child, but the father wanted to set up a new RESP. He asked the mother for a copy of her passport and social insurance number that he says was needed to open the account. The father wants to have control over this money, track the growth and possibly make more contributions in the future. He also wants to be certain that the money is solely for their child and not the children that the mother has with her new partner.

[41] This money is paid to satisfy child support arrears. The order states that the RESP shall be in the name of the mother. The money must be used for the child’s post-secondary education as set out in the order. While the order does not specify who controls the RESP, it is obviously the mother because the account will be opened in her name. The father is understandably interested in knowing how the RESP investment is doing because it will be used to fund post-secondary education. Both parents need this information and the father needs to know that the RESP will not be used to benefit the mother’s other children.

[42] During the motion, it was agreed that the father will deposit the $10,000 into the mother’s RESP and that this is an account that will benefit no one other than their child. The mother has agreed to provide the father with a yearly statement for this RESP. If the father wishes to create another RESP that he controls and funds for the child’s education, he is free to do so after he complies with the Nakonechny order. The $10,000 shall be deposited into the mother’s RESP no later than April 20, 2021.

Conclusion

[43] The orders that I make are final. All outstanding issues between the parties in this Application have now been decided.

[44] I make the following orders:

1. The Applicant’s motion is dismissed.

2. The Respondent’s motion is allowed, and the following relief ordered:

i. By April 20, 2021, the Applicant shall provide the insurer with the required authorization to allow the Respondent to directly submit claims to the insurer relating to the child. He shall provide the Respondent with written proof that this has been completed.

ii. By April 20, 2021, the Applicant shall pay the Respondent $378, representing his 50% share of the guitar lesson fees for October 2020 through March 2021.

iii. Effective April 1, 2021 until the end of March 2022, the Applicant shall pay the Respondent $63 a month for his share of the monthly guitar lesson. The Respondent shall provide the Applicant with copies of all invoices. From April 2021 until March 2022, the guitar lessons shall continue at the same frequency and cost. If either changes, the Respondent will require the Applicant’s consent, if she is seeking his 50% contribution.

iv. When the child's in-person occupational therapy resumes, the Respondent shall review with the therapist whether the guitar lessons should continue and shall keep the Applicant informed. If at the end of one year, the Respondent decides to continue the guitar lessons, she shall comply with para. 2 of the order of Nakonenchy J. dated February 1, 2021 and seek the Applicant’s consent. The Applicant shall also comply with this order. His consent shall not be unreasonably withheld.

v. The Applicant shall, no later than April 20, 2021, comply with para. 3 of the order of Nakonechny J. dated February 1, 2021 and provide the Respondent with proof of his compliance.

vi. The Applicant shall, no later than April 20, 2021, comply with para. 5(b) of the order of Nakonechny J. dated February 1, 2021. The $10,000 shall be deposited into the Respondent’s RESP solely for the benefit of the parties’ child. The Respondent shall provide the Applicant with the necessary details to identify the RESP account so the payment can be made.

vii. The Respondent shall provide the Applicant with year-end statements for the RESP for as long as the account is open.

viii. If the parties cannot agree on the costs of the motions, they shall exchange brief written submissions and file them with the court electronically by April 23, 2021.

C. Horkins J.

Date: April 9, 2021