Court File and Parties
COURT FILE NO.: FS-21-234 (Brantford) DATE: 2024/01/10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARLEE GILLIAN TANSLEY, Applicant AND: BRADLEY WILLIAM DIKIANIDIS, Respondent
BEFORE: Gibson J.
COUNSEL: Birkin J. Culp, Counsel for the Applicant Deborah L. Ditchfield, Counsel for the Respondent
HEARD: October 25, 2023
Endorsement
Overview
1What’s in a name?
2A child’s name, given to him or her, by both parents, is fundamental to the child’s identity, who he or she is and who he or she will become. “In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification”: Belisle v. Pool, 111 D.L.R. 717 (Ont. Ct. Gen. Div.), at para. 37.
3The Applicant mother Marlee Gillian Tansley (“the Applicant”) and the Respondent father Bradley William Dikianidis (“the Respondent”) have two young children, Atticus, age 4, and Mabel, age 2, who are the subject of this family law dispute. Many parenting issues remain unresolved on a final basis concerning these very young children, such as decision-making, parenting time and residence, but also a myriad of other “incidents” of what was previously known as “custody”. These include determination of issues such as mobility, travel, health care decisions and restrictions on decision-making including the very names of the children.
4The parties are scheduled for trial on the May 2024 trial sittings.
5The parties were never married. They cohabited from February 2017 until separation on August 6, 2021. At the time that the children were born, the parties together chose the forenames of the children, and their surname: “Dikianidis”, the surname of the Respondent father.
6This court proceeding was commenced by the Applicant in September 2021, seeking among other things: sole decision-making for the children and supervised parenting time for the Respondent. The Respondent responded with an Answer dated October 20, 2021, wherein he disputed the Applicant’s claims and sought joint decision-making with the mother and shared parenting time and residence of the children.
7The parties consented to the temporary Order of Nightingale J. dated January 17, 2023, giving the Applicant temporary decision-making responsibility for the two children.
8The Applicant, without consulting or advising the Respondent, subsequently filed two applications under the Change of Name Act to change the surnames of the children to “Tansley”, the surname of the Applicant mother.
9When the Respondent father learned of this, when copies of the two applications were mailed to his parents’ residence where he lives, his counsel engaged counsel for the Applicant opposing this. Controversy ensued between the parties and their counsel for several months.
10Counsel for the Respondent filed an objection with the Registrar General. The Registrar General acknowledged receipt of the objection but did not commit to stay the name change application unless a specific order was obtained from a court.
11On September 13, 2023, Broad J. temporarily stayed the name change application.
12The Applicant has subsequently sought to withdraw her pending application, and to submit a new one to change the children’s surnames to “Tansley-Dikianidis,” and to have her father’s name “Robert” added to Atticus’s forenames.
13By her Notice of Motion dated September 10, 2023, the Applicant mother seeks a temporary order that she be permitted to apply for, renew or replace legal identity documents for the two children. She also seeks an Order dismissing the Respondent’s motion, such that there would be no interlocutory injunction prohibiting the Registrar General from processing the change of surname of the children, and also adding her father’s name of “Robert” to Atticus’s forenames. She asks for an Order precluding the Respondent from filing an objection, and also asks that the Office of the Children’s Lawyer (“OCL”) be requested to provide representation to the children.
14By his Notice of Motion dated September 6, 2013, the Respondent father seeks an Order: continuing the temporary Order of Broad J. dated September 13, 2023, staying the Applicant’s application under the Change of Name Act seeking to change the surnames of the children from Dikianidis to Tansley pending final determination at the forthcoming trial; dismissing the Applicant’s cross-motion seeking to withdraw her pending application and to substitute another seeking to make “Tansley-Dikianidis” their surnames and to change Atticus’s name to insert the maternal grandfather’s name “Robert”; and prohibiting the Applicant from applying to change the names of the children without the written consent of the Respondent.
15These were the two motions that were before me.
Issues
16The issues to be decided on these motions are:
- Should the Applicant be permitted to proceed to change the children’s names under the Change of Name Act based upon a temporary order granting her decision-making responsibility?
- Should the stay of the application to change the children’s names be continued until after the children’s best interests as a whole are determined at trial?
Law and Analysis
17A key issue where the parties differ in their positions is how the term “lawful custody” in sections 5 and 6 of the Change of Name Act should be interpreted in this context given the recent change of terminology in the Children’s Law Reform Act.
18Sections 5 and 6 of the Change of Name Act, R.S.O. 1990, c C.7 (‘the Act”) provides the framework under which a parent with “lawful custody”, pursuant to a court order or separation agreement, may apply to change a child’s name:
“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 of both; or (b) the child’s single name if the child has a single name.”
Section 5(1.1) provides that: “Subsection (1) applies to a person with lawful custody (emphasis added) 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.”
Section 5(2) states that the application for change of name under subsection 5(1) “… requires the written consent of, (a) any other person with lawful custody (emphasis added) of the child;
(b) any person whose consent is necessary in accordance with a court order or separation agreement (emphasis added); and
(c) the child, if the child is twelve years of age or older.”
Furthermore, an Application under subsection 6 requires the applicant for the change of name of a child to state by “statutory declaration” in the application:
“6(f) in the case of an application under subsection 5(1), (i) that the applicant has lawful custody (emphasis added) of the child,
(ii) that no court order or separation agreement prohibits the change (emphasis added) of name that is sought,
(iii) whether a court order or separation agreement provides that the child’s name shall not be changed without a person’s consent and, if so, the particulars of the order or agreement ” (emphasis added)
Further, subsection 6 (o) requires that the applicant to declare that “… every consent required for the application has been given or has been dispensed by the court”.
And, 6 (p) requires “… that every person entitled to notice of the application has been given notice;”.
19The Applicant currently has only a temporary order for “decision-making” for Atticus and Mabel. The Respondent has clearly not consented to the name changes and nor has his consent been dispensed with by the court. On the contrary, he has specifically requested in his Answer before the court, that his consent be required related to the application for, and renewal of, all identity documents.
20Neither has the Applicant sought in her application before this court an order dispensing with the Respondent father’s consent to any change of the children’s names; rather, she has sought the ability to apply for or renew the children’s identity documents only, such as Birth Certificates, health cards, S.I.N. cards and passports. The children already have identity documents in place, their Birth Certificates with the names and surnames chosen for them by both parents: Atticus William Dikianidis and Mabel Irene Dikianidis.
21“Lawful custody” is not defined in the Change of Name Act. Since the passing of the amendments to the Children’s Law Reform Act in 2020, which came into effect March 1, 2021, providing for “parenting orders”, “contact orders”, determining “decision-making” and “parenting-time” under section 28, the Change of Name Act has not been similarly amended to conform with the amendments to substitute “decision-making” for “lawful custody”. There have also been similar amendments to s.16 of the Divorce Act concurrently made in the federal legislative sphere, which parallel many of the changes made to the Children’s Law Reform Act.
22The Divorce Act no longer uses an approach based on “custody” and “access”, but rather focuses on parenting time and decision-making responsibility, which may be allocated in a parenting order. Unlike “custody” and “access”, which are terms commonly associated with property ownership, the new terms encourage parents to focus on the needs of their children.
23The Applicant submits that, in the current circumstances, until the Legislature harmonizes the terms in the Change of Name Act and the Children’s Law Reform Act, “lawful custody” should be interpreted to be equivalent to “decision-making responsibility”.
24The Respondent disagrees, and submits that even if “lawful custody” can be equated with “decision-making” in the context of an application under the Change of Name Act, “lawful custody” and “decision-making” can only be taken to mean custody or decision-making that has been finally determined by court order or by the parties via agreement and memorialized by a separation agreement. To interpret the statute as applying to temporary orders rather than finally determined orders leads, he asserts, to absurdity. Use of language requiring the applicant for a change of name have lawful custody under a “separation agreement” can only logically mean terms of a final separation agreement, freely negotiated by the parents where they have considered the best interests of their children, arrived at parenting arrangements covering all aspects and incidents of parenting agreements, including the names of the children, are aware of all their respective rights and responsibilities as parents under the parenting agreement, have had independent legal advice regarding same and reduced the agreements to writing in accordance with the requirements of a valid domestic contract as defined under s. 54 of the Family Law Act.
25Moreover, the Respondent submits, as pertains to the right of a parent who has a “lawful custody” of a child to apply for a name change, the same holds true. Language referring to having a lawful custody order must logically mean a final order for custody. While it is long and well established that courts have absolute ( parens patriae ) authority to determine any aspect of or the incidents of custody on a temporary or final basis, the absurdity that flows (not to mention the unfairness) from interpreting the Change of Name Act as permitting change of name based on a temporary decision-making order, is that an unscrupulous parent could be granted temporary decision-making, on a without notice basis, and could immediately and successfully apply to change a child’s name, without having to give notice to the other parent ( because the parent has not yet been granted parenting-time), without the parent’s parenting-time even being considered or the other parent even being aware of the application.
26The concept of “decision-making responsibility” means the responsibility for making significant decisions about a child’s well-being, including decisions about the child’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities: Children’s Law Reform Act, s.18. This responsibility could be allocated to one or both parents. The option of separately allocating different decision-making responsibilities to each parent is recognized.
27I essentially agree with the Respondent’s position. I am reluctant to endorse the proposition that “lawful custody” and “decision-making responsibility” are essentially synonymous for all purposes, and that they necessarily directly align for the purposes of the issues in the present case. Parliament, in the Divorce Act, and the Legislature of Ontario in the Children’s Law Reform Act, made the changes in terms for a principled and purposive reason. The legislative schemes as they now exist are more nuanced. The court may allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either parent, to both parents, or to another appropriate person. This gives the court a wide discretion to craft a decision-making responsibility framework that supports and promotes the best interests of the children concerned, taking into consideration the unique facts of each case.
28There are no reported cases where an Ontario court has made an order dispensing with a parent’s consent to a name change of children based on a temporary order only for custody or decision-making.
29In Roy-Bevington v. Rigden, 2017 ONCJ 730, Justice Finlayson of the Ontario Court of Justice, commenting on a mother’s action of applying to change a child’s name based only on temporary custody, noted at para 21 that “..The mother’s custody order dated January 26, 2016 is temporary only so the question of custody is not resolved on a final basis”. Justice Finlayson held that 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. The governing test is the best interests of the child test.
30In Zho v. Chen at para. 24, Nelson J. held that the Court could prohibit the changing of a child’s name as it is an incident of custody, and that the test was whether an order would be in the best interest of the child:
The state of the law then is very clear. The court must find that a change of name as an incident of custody would be in the best interests of the child whose name is sought to be changed.
31The decision of changing a child’s name is more than an administrative act: Herniman v. Woltz at para. 8. Any proposed name change should be carefully considered to ensure that such a name will be beneficial to the child throughout the child’s lifetime. The child should not automatically have his or her surname changed to conform to the present surname of the custodial parent. The changing of a young child’s surname should never be founded on convenience. Consideration must fully canvass the best interests of the child.
32The Applicant in the present case does not have “sole custody”. She had temporary decision-making for only 3 months when she made application to change the children’s names.
33Granting the Applicant’s motion based on a temporary order would have profound implications for the Respondent father. It would risk deciding the issue and preventing the Respondent father from having a full opportunity to present evidence at trial concerning the best interests of the children.
34The Applicant has moved prematurely to attempt to change of names of the children, and present it as a fait accompli at trial. She has no good explanation for why this must be done now when the children are just 4 and 2. There is no evidence that she has been impeded in any way from traveling with the children or accessing public services for them. Embarrassment to her cannot be a relevant factor. There are today in Ontario multitudes of children who have different surnames from their primary caregiving parent who are enrolled in school, activities and daycare. There is no indication that these children are in any way stigmatized. The Applicant has provided no evidence of harm to the children on the basis of their current surname, nor has she provided an instance where the children were unable to access care or services as a result of their surname. The court in Hennessy v. Brockett, 2021 ONSC 8280, has taken judicial notice that many women use their pre-marital surnames in both personal and business dealings, regardless of whether their children share that surname. This makes instances where the mother and children have differing surnames commonplace, and unlikely to subject the mother or the children to undue inquiries, embarrassment or obstacles to services and care. The court also noted that changing the children’s name to avoid some alleged embarrassment, and because of how the mother “feels” when she must tell people the children have a different last name does not focus on the children at all. Here, the Applicant seeks an order to change the children’s names based on her own personal feelings towards the Respondent and the surname Dikianidis, and her own alleged embarrassment in scenarios where it may be apparent that she has a different last name to the children.
35The children are far too young to express any wishes that can be taken into consideration.
36Clearly, the “best interest” test as defined under section 24(b) of the Children’s Law Reform Act requires that the children’s relationship with both parents should be taken into account when determining final decision-making, the “incidents” of “custody” and parenting time and whether the proposed change would be in the child’s best interest.
37The change of the children’s names, while the parties are actively seeking a final order through the courts, is inappropriate and premature. It impedes the court’s ability to consider the full impact of the name change, which is considered an incident of custody, on the best interests of the children.
38It would be far more appropriate for the parties to have addressed the matter of the children’s names within the decision of the court in a final order after trial, as there is no evidence of harm to the children by maintaining the surname they have had since birth. The Change of Name Act contemplates the prohibition of a name change in a final order. As the parties continue to actively seek a final decision-making order, a change to the children’s name unilaterally is premature.
39The motion of the Applicant will be dismissed.
40The motion of the Respondent will be granted in part.
41The Respondent is the more successful party on the motions. He has submitted a Bill of Costs which I have considered, having regard to the factors set out in Rule 24 of the Family Law Rules, and to the principles of proportionality and reasonableness.
Order
42The Court Orders, on a temporary basis, that:
- The Application of the Applicant, Marlee Gillian Tansley, brought under the Change of Name Act, R.S.O. 1990, c. C.7. to change the surname of the minor children, Atticus William Dikianidis, born 2019/04/21 (age 4) (“Atticus”) and Mabel Irene Dikianidis born 2020/12/16 (age 2) (“Mabel”) (collectively “the children”) from “Dikianidis” to “Tansley”, is stayed pending the Final Order of the Court in the within proceeding;
- The Registrar General and the Applicant shall refrain from taking any further steps to advance or Process any Applications to change the surnames of the children from “Dikianidis” to “Tansley”, or to “Tansley-Dikianidis,” pending further orders of this Court;
- The Respondent has leave to amend his Answer and Claim to seek an Order prohibiting the Applicant from seeking any changes to the surname of the minor children Atticus and Mabel without the written consent of the Respondent father; and
- The Applicant shall pay costs on the motions to the Respondent fixed at $5,000 all-inclusive.
M. Gibson J.
Date: January 10, 2024