Pulkinen v Munden, 2013 ABQB 139

Court of Queen ’ s Bench of Alberta Citation: Pulkinen v Munden, 2013 ABQB 139 Date: 20130305 Docket: 4809 004868 Registry: Peace River Between: Jeffrey John Raymond Pulkinen Respondent/Plaintiff - and - Lynn Munden (Pulkinen) Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] Lynn Munden, formerly Lynn Pulkinen, applies for an order dispensing with her former husband's consent so that she can change their children's last names to Munden-Pulkinen from Pulkinen. [ 2 ] The children are currently six and four years old. Basis for Application [ 3 ] Ms. Munden applied on December 27, 2013 for this order, stating:

I am requesting that the children's last name include my maiden name because I feel it's in the children's best interests as this trulyidentifies them as belonging to both Jeff Pulkinen and Lynn Munden. The inclusion of my name also eliminates a degree of confusion asto whether I am their mother or not. I have already been questioned on this due to our last names being different. The oldest, who is 5, isalready showing confusion as to why her mother's last name is different than hers.

Also, since there is no boys in our immediate familyto carry on the Munden name I would appreciate this addition to our children's name. [4] Ms. Munden sought this remedy in December, 2010.

At that time, her application was dismissed by Verville J., althoughparagraph 3 of his order states: The Applicant is at liberty to reapply for the children's name change if the proper authorities are provided. [5] Justice Verville also confirmed an order granted by the Supreme Court of Newfoundland and Labrador, Family Divisionissued November 16, 2010, other than as varied by his order. [6] The Newfoundland Order provides in para. 7(

b) that: …where the parties have reached an impasse they will first seek out professional services from a family counsellor or mediator to resolvetheir differences. If an agreement cannot be reached either party may make application to court. [7] At an application relating to spousal support on January 10, 2013, Nielsen J. ordered in para. 5 that: The Respondent's, Lynn Munden, children's name change Application shall be heard … on February 14, 2013, at 10:00 a.m. Position of the Parties Ms. Munden [8] She argues that the change of name is in the best interests of the children.

She has also referred to a number of authoritieson the subject of name changes for children following divorce: Vanderlinde v. Bohn, 2003 SKQB 503; Bachinsky v. Bachinsky, (1985), (MB KB), 34 Man. R. (2d) 222 (Q.B.); Landa-McAuliffe v. Boland, 2012 BCSC 1354; D.(L.M.) v. S.(J.R.), 2010 NBQB 188; and Dukas v. Varkony, (1995), (MB KB), 104 Man. R. (2d) 110 (Q.B.). Mr. Pulkinen [9] Mr. Pulkinen opposes the application, on two bases:

1. This dispute has not been mediated, which is a precondition of a court application; and 2. Ms. Munden has not met the burden of proof that the name change is in the children's best interests. Mediation [ 10 ] Ms. Munden does not wish to mediate this dispute, stating in her materials that: … I decided to forgo mediation and the fee was too much. Mediation was attempted in the past and was clearly ineffective. [ 11 ] Neither Verville J. nor Nielsen J. referred to mediation in their orders. [ 12 ] The Newfoundland Order is a comprehensive order which was negotiated by the parties through their counsel.

The parties signed the agreement themselves on November 5, 2010. The order deals extensively with parenting issues. It remains the dominant order relating to parenting between the parties. [ 13 ] In the Newfoundland Order, the parties consented to the provision requiring mediation of major decisions regarding the well- being of the children, when they could not agree between themselves. [ 14 ] Within a month of the Newfoundland Order, and six weeks of the parties' agreement, Ms. Munden sought to have the children's last names changed.

There is no indication that the issue was mediated at that time. [ 15 ] She again sought to have the issue determined by the court without mediation before Nielsen J. in January, 2013 and again before me on February 14, 2013. Her reasons for not wanting to mediate is that it is costly and it has proven ineffective before. [ 16 ] This is, in my view, a matter that is a major decision relating to the well-being of the children. There can be few things as personal to an individual as his or her name. The issue clearly falls within the provisions of para. 7(

b) of the Newfoundland Order. [ 17 ] I recognize that the Court has an inherent jurisdiction to ignore contractual provisions relating to dispute resolution. Mandatory arbitration provisions have sometimes yielded to court processes. That is the exception and not the rule. There must be a compelling reason to fail to require the parties to adhere to their agreement. [ 18 ] With respect to mediation agreements between parents, these should generally be enforced.

Parents should not be encouraged to abdicate their roles as parents by being able to rush off to court, often self-represented, to have a person who is a total stranger to the child make important decisions regarding the child's health care, education, religion or otherwise.

The parents are in the best position to make such decisions in their child ’ s best interests, and if they are unable to do so, they are generally better served by working with a family counsellor or family mediator rather than using the adversarial court system. [ 19 ] There may be exceptions, such as with financial matters or where there is urgency, but when the parents have, with the benefit of counsel, agreed to negotiate and then mediate disputes, they should be held to that agreement, absent strong and compelling reasons to the contrary. [ 20 ] As for expense, Ms.

Munden ’ s financial position has, if anything, improved since the Newfoundland Order was made. She is now working in a professional capacity. She now also resides with a new companion so her expenses have been reduced. [ 21 ] The fact that previous mediations have failed does not obviate the need for the parties to try again. Responsible parents put

their differences aside and work collaboratively in their children's best interests. They need to honour previous agreements made by them, until they are relieved from those obligations for good and sufficient cause. [ 22 ] It is not up to Ms. Munden to pick and choose which disputes she wants to mediate and which ones she wants to litigate. Mr. Pulkinen obviously wants to go through the mediation process. I infer from that that he is prepared to be open-minded and act in good faith, keeping the children's best interests as the foremost consideration. [ 23 ] At this stage, Ms.

Munden ’ s application is premature, as the parties are required to discuss this issue between them, and then use the services of a family counsellor or mediator to help them try to reach agreement in the children's best interests. Jurisdiction [ 24 ] The parties have not provided me with any Alberta authority on the subject, but I have found two decision on point. The statutory jurisdiction for the Court to become involved in this matter is in the Vital Statistics Act , S.A. 2007, ch.

V- 4.1: 23(1) Subject to this Act, any person referred to in section 22(2) may apply to change a first name or last name if the name being changed is that person's own name.

(2) Subject to subsection (4), any person referred to in section 22(2) may apply to change the first name or last name of a child if the person is a parent or guardian of the child.

(3) Subject to subsection (4), the consent of both parents listed on the child's birth registration document is required for an application under subsection (2) unless (

a) where the applicant is a parent, (

i) the applicant makes an affidavit stating that the applicant is the sole guardian, or that there are no other guardians by operation of

section 20 of the Family Law Act, of the child whose name is to be changed, or (ii) there is a court order that gives sole guardianship to that parent or that states that the other parent is no longer a guardian, (

b) there is a court order that appoints guardians in lieu of the parents, in which case the consent of those guardians is required and the parents' consent is not required, or (

c) there is a court order under

section 69 dispensing with the other parent's or any other guardians' consents.

(4) Where there is a court order that appoints guardians in addition to the parents, the consent of those guardians to an application for a change of name under subsection (2) is also required.

(5) Any person referred to in section 22(2) may apply to change the first name or last name of that person's spouse or adult interdependent partner, with the consent of the spouse or adult interdependent partner.

(6) If an application to change a name under subsection (2) is in respect of the name of a child who is 12 years of age or over, the consent of the child is also required.

(7) An application under this Part may be made (

a) by or on behalf of a person born in Canada, only with respect to (

i) the name that appears on the person's birth registration document, or (ii) the name to which the name referred to in subclause (

i) was changed pursuant to a change of name application, or (

b) by or on behalf of a person born outside Canada, only with respect to (

i) the name under which the person was lawfully admitted to Canada, or (ii) the name to which the name referred to in subclause (

i) was subsequently changed pursuant to a change of name application. Requirements for application 24(1) An application for a change of name under this Part must include the information prescribed in the regulations and must be filed with the Registrar.

(2) The applicant shall file the following documents with the application: (

a) an affidavit in the form required by the Registrar setting out the reasons for the change of name; (

b) the consent of every person whose consent to the change of name is required under

section 23 or a copy of an order of the Court of Queen's Bench under

section 69 dispensing with one or more required consents;

Section 69 provides: 69(1) If on an application under this Act the consent of a person is required and the applicant is unable to obtain the consent of that person, the Court of Queen's Bench may dispense with the consent of that person.

(2) If the application referred to in subsection (1) is an application to amend or change the name of a child, the Court of Queen's Bench, in deciding whether to dispense with consent, shall have regard to the best interests of the child. [ 25 ] Vanderlinde v. Bohn involved an application by a child's mother to have his surname changed to include her maiden name hyphenated with the father's surname. The mother had primary residency of the boy, and the father exercised regular access and “ played a meaningful role in his life. ” The boy was already known by the hyphenated name, as his mother had informally changed it to "Timmerman-Bohn".

[26] The application was opposed by the father on the basis that the mother was no longer using her maiden name herself, and healso argued that the name change was not in the boy's best interests. [27] Klebuc J. allowed the application, finding that the applicant had discharged the onus of establishing “a reasonable basis forchanging (the boy'

s) name” (at para. 13) and concluded his decision by stating at para 15: Unlike circumstances where a proposed name change coupled with a separation or divorce may conceal the connection between thenon-custodial parent and his or her child by means of the surname, the proposed hyphenated surname will anchor Connor's connectionwith both parents. [28] The Saskatchewan legislation (The Change of Name Act, 1995) is similar to Alberta's legislation, but contains no reference tothe best interests of the child.

Klebuc, J., however, concluded that the bests interests of the child is the determining factor in applicationsto dispense with a parent's consent (at para. 10). [29] Vanderlinde v. Bohn was distinguished by Sandomirsky J. in McDonald v. Deagnon, 2009 SKQB 154. In that case, heconsidered Trociuk v. British Columbia (Attorney General), 2003 SCC 34. [30] While that case dealt with the constitutionality of British Columbia's Name Act, and the initial registration of a child's name,the Supreme Court commented at para. 16: A birth registration is not only an instrument of prompt recording.

It evidences the biological ties between parent and child, and includingone's particulars on the registration is a means of affirming these ties. Such ties do not exhaustively define the parent-child relationship.However, they are a significant feature of that relationship for many in our society, and affirming them is a significant means by whichsome parents participate in a child's life. [31] In McDonald v. Deagnon, the father sought an order changing his son's name to include his surname. The parents had neverlived together, and the mother had primary residential care.

There was a slowly-developing bond between the father and his son.Sandomirsky J. concluded that the father's application was premature, and he directed that the parties mediate the issue: [14] I further find merit in counsel's mutual submission that mediation may be appropriate for the parties.

Section 10 of TheChildren's Law Act, 1997 permits the court to order the petitioner and respondent into mediation upon application by either party.Mediation is a means of dispute resolution which engages the parties in a more meaningful and rational manner, rather than litigatingtheir positions and deferring to a judge's opinion. [32] Vanderlinde reviews a number of Canadian cases on name changes for children. I do note that in Zho v. Chen, (Ont.

S.C.), the Court refused the mother's application to change the child's surname to that of her new husband's so that the childand her child with the second husband would have the same last name. Applying the “best interests” test, the Court ruled that the motherhad not met the burden of proof. [33] In Re R.F.S., (1979), (NS CA), 32 N.S.R. (2d) 246 (N.S.S.C. (A.D.)), the Nova Scotia Court of Appealrefused a mother's name change application on the basis that “there is no longer a stigma in society attached to a difference between thename of the child and his parent.” (at para. 10).

The Court of Appeal also stated that different considerations apply to name changes inconnection with adoptions, than as between the natural parents of a child. That position makes cases such as Bachinsky v. Bachinsky oflittle assistance here. [34] In Landa-McCauliffe v. Boland, the parties disagreed as to the order of their surnames in their child's last name followingtheir separation. The British Columbia Supreme Court noted: [15] Mr. Landa wants a hyphenated surname “Landa-Boland” with his name first. Ms. Boland wants the surname “Boland-Landa”with her name first. Ms.

Boland is the primary caregiver of the child.

[35] The Court concluded that as the parents were in agreement that the child should have a hyphenated last name, and that therewas no presumption as to whose name should be first, the neutral approach dictated that the names would appear alphabetically. Thatalso preserved the status quo as that was the name the mother, as primary caregiver, had informally used for some time before theapplication. [36] In Dukas v. Varcony, the Manitoba Court of Queen's Bench permitted the addition of the mother's surname to the child's,stating that the emotional needs of the father was not the appropriate test.

The father had opposed the application on the basis that theproposed name change would diminish his relationship with the child. [37] In A.N.H. v. M.K.C., 2010 NBQB 120, the Court allowed the father's application to have his child’s surname changed to addhis. The Court cited Trociuk noting that adding the father's surname was significant and excluding him from participation in the child’sname was depriving him of an important aspect of parenting. The mother's objection (cumbersome last name) was found to be aninadequate reason for opposing the application. [38] L.M.D. v.

J.R.S., [2010] N.B.J. 258, is a case similar to this one. There, the parties were not married, but lived together fortwo years after the child was born. Both participated in the naming of the child. The child was given the father's surname. After theseparation, the mother sought to have her name added to this child's surname. After a careful review of the authorities across Canada, French J. held: 35 There is little evidence of the awkwardness or difficulties alleged by L.M.D. However, Dr.

S’s argument that there is no reasonto change C.H.S’s surname, without more, does not weigh heavily when measured against a name that would demonstratively recognizeC.H.S.’s relationship with both parents and the continuity with their families. The Supreme Court of Canada in Trociuk and otherreported decisions referred to above, recognize the significance of a child's surname and its importance to the connection between a childand the child's parents. These authorities make it clear that including the name of both parents is consistent with a child's best interests.This is not a random change of name.

Nor is it a request without a purpose. In the absence of any evidence to suggest that C.H.S’'sexisting surname – the name of only one parent – is in his best interest or otherwise preferable in the circumstances, a surname thatincludes the names of both parents cannot be rejected simply on the basis that the status quo should prevail.

Not only is there no reasonwhy the name should not change but also, in the circumstances of C.H.S., given his young age (he was still three when the initialapplication was filed) and close relationship with both parents, he will benefit from a name that reflects his connection to two separatefamilies. [39] The Alberta authorities on this subject are Wintermute v. O’Sullivan, (1985), (AB KB), 48 R.F.L. (2d)276 (Q.B.) and Smalley v. Hoppe, 1999 ABQB 931. In Smalley v.

Hoppe, Veit J. applied the tests from Wintermute and stated: 8 In Wintemute, Sinclair C.J.Q.B. outlined the factors that a judge should consider on an application of this type: • welfare of the children is the paramount consideration; • the short and long term effects of any change in the children's surname; • any embarrassment that the children may feel in having a different surname from that of the custodial parent; • any confusion of identity that may arise if the name is changed or is not changed; • the effect of a change of name on the relationship with the parent whose name the child bore during the marriage; • the effect of frequent or random changes of name.

9 I accept those as the factors that I must consider on this application. [ 40 ] In Wintermute , the father sought an injunction to prevent his ex-wife from using her new last name (her new husband's surname) in connection with their daughter. The application was not made under the old Change of Name Act , as the mother had not sought, nor was she seeking, to legally change the child's name. Sinclair granted the injunction on the basis of potential harm to the daughter's relationship with her natural father. [ 41 ] Smalley v.

Hoppe is a case where the mother sought to change the children's last name from the father's surname to that of her new husband, who had a close relationship with the children, on the basis that the father had little to do with the children. [ 42 ] Veit J. dismissed the application, after reviewing the Wintermute factors and in particular on consideration of the impact the name change might have on the children's relationship with their natural father. [ 43 ] As with Veit J., I accept the factors outlined in Wintermute as the appropriate matters to consider on such an application in Alberta. [ 44 ] This is not a case where the mother has expressed any concerns about the impact of any name change on her relationship with the children.

Unlike Trociuk , neither party was excluded from the naming of the children in the first place. Ms. Munden is the primary residential parent of the children. The father does not oppose the application on any substantive basis other than that Ms. Munden has not met the onus of proof on her, namely that the name change is in the best interests of the children. [ 45 ] Her evidence on any of the Wintermute factors is very scant, and refers to one incident of being questioned herself about the children's names. She expresses future or speculative concerns.

Her reason relating to the absence of male children in the Munden family is not a “ best interests of the children ” issue, but is rather her issue, or her parents' issue. I note that the parties' son already bears Ms. Munden's father's first name, so there were obviously family considerations when the son was named. [ 46 ] Even in the absence of my unwillingness to proceed with this application without the parties having attempted to resolve the issue themselves, Ms.

Munden has not brought enough evidence forward as to the tests set forth in Wintermute and applied in Smalley . [ 47 ] Just because the parties have separated and one of the parties wants a name change, does not entitle that party to have the court dispense with the opposing party's consent. A reasonable basis, in the best interests of the child, must be shown. [ 48 ] As noted in Dukas v. Varcony , the emotional needs of the parents are not a determining factor. Ms. Munden being questioned about her relationship with the children is her issue and not the children ’ s.

This is not a case where the children have already become known in the community by a hyphenated last name, or where there is a need to use a name change to anchor a child with the non- referenced parent. [ 49 ] I also decline to make a finding that hyphenated last names or last names which in some fashion identify each parent are always in the best interests of the child or children involved. Each case will depend on its own facts. I do not consider that such applications should be automatically granted on the application of either parent. While the logic in Trociuk and L.M.D. v.

J.R.S. is compelling as to the potential benefits of hyphenated last names, there is no presumption in favour of such names, especially when the parents have previously agreed on a different name. [ 50 ] For the purposes of the mediation between the parties, and any subsequent application if the mediation does not resolve the matter, it seems to me that in addition to the Wintermute tests, the following issues may be relevant:

1. What is the status of Ms. Munden's current relationship? Is she likely to remarry? Will she adopt her new husband ’ s surname on marriage (as she did with Mr. Pulkinen)? What confusion might that cause? 2. Is Ms. Munden likely to have any further children? If so, those children would have different surnames from their step-siblings. What confusion might that cause? 3. Are there alternatives, such as adding “ Munden ” as a name for each children, but without hyphenating it as a surname? [ 51 ] I hope that Mr. Pulkinen ’ s opposition to Ms. Munden ’ s application is not simply mean-spirited.

Nevertheless, the parties deliberately chose names for their children when they were together. Ms. Munden had taken her husband's last name, as her mother had done before her. They had the option of including Ms. Munden's surname in some fashion in the children's names. They chose not to do so. They did not give their daughter a middle name, again by choice. There were undoubtedly reasons for these choices. [ 52 ] At this stage, I leave it to the parties to mediate. Failing mediation, on further and better evidence as to the best interests of the children and with regard to the Wintermute tests, Ms.

Munden might make a further application. Costs [ 53 ] Mr. Pulkinen has been successful in resisting this application on both grounds: the pre-condition of mediation was not met, and Ms. Munden ’ s materials did not meet the burden of proof required of her. Mr. Pulkinen was also successful in resisting a concurrent application relating to retroactive support. [ 54 ] Mr. Pulkinen was represented by counsel on this application, and is entitled to costs in the amount of $500.00. Heard on the 14 th day of February, 2013. Dated at the City of Edmonton, Alberta, this 4 th day of March, 2013. Robert A.

Graesser J.C.Q.B.A. Appearances: Ms. Lynn Munden

Appeared on her own behalf Ms. K. Jaimie Warne Harcourt Law Office for the Respondent