Registrar GENERAL of Vital Statistics AppELLANT And: H.V. First RESPONDENT And: A.M. Second RESPONDENT, 2020 NLSC 95

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Registrar General of Vital Statistics v. H.V. and A.M. , 2020 NLSC 95 Date : July 6, 2020 Docket : 201901G7169 Between: Registrar GENERAL of Vital Statistics AppELLANT And: H.V. First RESPONDENT And: A.M. Second RESPONDENT Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 30, 2020

Summary: The Court set aside an order of a Provincial Court Judge that dispensed with the consent of the biological father to remove his name from the birth certificates of his two children. The Court found that the Judge had no authority to make such an order. Appearances:

Mark P. Sheppard Appearing on behalf of the Applicant H.V. Appearing on her own behalf No Appearance On behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen , 2002 SCC 33 STATUTES CONSIDERED: Vital Statistics Act, 2009 , S.N.L. 2009, c. B-6.01; Change of Name Act, 2009 , S.N.L. 2009, c. C-8.1 ; Children’s Law Act , R.S.N.L. 1990, c. C-13 ; REASONS FOR JUDGMENT McGrath, J. : INTRODUCTION [ 1 ] The Appellant, the Registrar General of Vital Statistics (“Registrar”), has appealed an October 16, 2019 order of a Provincial Court Judge in a family law proceeding.

The Respondents are the parties to that proceeding. [ 2 ] While it may seem unusual for the Registrar to appeal an order arising from a matter in which it was not a party, it has standing to bring this application as the order being appealed was purportedly made under the provisions of the Vital Statistics Act, 2009 , S.N.L. 2009, c. B-6.01 (the “ Act ”). The order dispenses with the consent of A.M. for the removal of his name on the birth certificates of his two children, ages 6 and 9, pursuant to the Act . [ 3 ] This order was made on an application filed by H.V.

A.M. did not appear despite being served pursuant to an order of substituted service made by the Provincial Court Judge. That order allowed for substituted service on A.M. by serving his parents, who are residents of the province. Similarly, this Court made an order of substituted service on A.M. by serving both A.M.’s parents and A.M. at his last known address in Alberta.

A.M. did not respond to or participate in this appeal. [ 4 ] The Registrar asks that I to set aside the order of the Provincial Court Judge on the basis that he had no authority to make such an order. issue [ 5 ] The narrow issue for determination on this application is as follows: 1.

Did the Provincial Court Judge err in ordering that the consent of A.M. to the removal of his name on the children’s birth certificates be dispensed with? law and analysis [ 6 ] The Registrar submitted that the standard of review of a decision of the Provincial Court Judge in this matter should be that of correctness, relying upon the leading Supreme Court of Canada decision in Housen v. Nikolaisen , 2002 SCC 33 . The applicable standard of review of an Appellate Court on a question of law is that of correctness and on a question of mixed fact and law is that of palpable and overriding error.

As the question of whether the Provincial Court Judge had the authority to issue the order at issue is a question of law, the decision should be reviewed on a correctness standard. [ 7 ] While the transcript of the proceedings below is brief, it is apparent that the Provincial Court Judge initially asked whether H.V. was “looking for an order to dispense with the consent of [A. M.] to change your child’s name”. A conversation then ensued between the Provincial Court Judge and H.V. in which H.V. noted that she was “not able to change passports or anything now without [A.M.’s] consent”.

In response, the Provincial Court Judge asked: “So you got to change the birth certificates?” Following a positive response by H.V., the Provincial Court Judge said that the order was granted. [ 8 ] The above exchange leaves the impression that the Provincial Court Judge was ordering a change of name for the children. However, the application filed by H.V. asked that the biological father’s name be removed from the birth certificates pursuant to the Act .

That is also the wording used and the legislation cited in the formal order. [ 9 ] If H.V. had been looking to change the family name of the children on their birth certificates, the Registrar notes that section

6(3) of the Change of Name Act, 2009 , S.N.L. 2009, c. C-8.1 , does permit a court to dispense with the consent of a parent to change the name of a child. However, that is not the order that was made or requested. The Registrar also notes that there is no provision in the Change of Name Act, 2009 that authorizes the removal of a biological father’s name from the birth certificate. Further, on this appeal, H.V. indicated that the last name of the children on their birth certificates is the same as her family name and not the family name of A.M.

As such, that type of order would not have been necessary. [ 10 ] The Registrar submits that it is the Vital Statistics Act, 2019 , that governs registration of births. There is no provision in that Act authorizing a court to make the order that was actually made, i.e. dispensing with the consent of a parent to have that parent’s name removed from a birth certificate. [ 11 ] The Registrar correctly notes

section 28 of the Act does permit the Registrar to correct errors in the birth registration by inquiring into the matter and, if satisfactory evidence verified by statutory declaration is presented, an error can be corrected by recording the correction on the registration without altering the original entry. [ 12 ] The Registrar provides an example of how

section 28 could be used to change the name of a father on a birth certificate. Pursuant to

section 7 of the Children’s Law Act , R.S.N.L. 1990, c. C-13 , a court has the ability to issue a declaration that a man is or is not the father of the child. If such an order was made, an application could be made to the Registrar to correct the registration under

section 28 of the Act . [ 13 ] However, in the matter before me, H.V. acknowledges that A.M. is the birth parent of the two children who are the subject of the order. As such,

section 28 does not apply. No error was made in the registration of birth. [ 14 ] The Registrar notes that there may be other orders that the Provincial Court Judge could have issued that would have assisted H.V. in dealing with other government authorities. [ 15 ] In fact, at the hearing of this appeal, it became evident that H.V.’s primary concern is dealing with administrative issues. She indicated frustration that she had been unable to change the children’s social insurance cards and passports, indicating that the issue seemed to be that A.M.’s name was on the children’s birth certificates.

H.V. is also upset that A.M. has had no recent contact with the children and has not paid child support, contrary to existing court orders. [ 16 ] However, those issues are not before the Court on this appeal. This appeal does not involve orders of the Provincial Court dealing with enforcement of orders for parenting or child support. In fact, according to H.V., she obtained an order for sole custody (i.e. decision making) of the children. [ 17 ] When this appeal was originally set down for a hearing, I strongly recommended to H.V. that she obtain legal advice, either through private counsel or Legal Aid.

I noted there are applications she could potentially bring to obtain orders from the Provincial Court to assist her in dealing with governmental agencies on matters such as the children’s social insurance cards and passports. [ 18 ] While these issues are not currently before the Court, I stated to H.V. that she should ensure that all the governmental departments with whom she is dealing have a copy of the sole custody order that had been previously granted by the Provincial Court.

If she still encounters difficulties with governmental authorities, she could seek specific orders from the court below dispensing with any requirement for A.M. to consent to the issuance of, or changes to, the children’s social insurance cards or passports. A Provincial Court Judge would have the authority to deal with those issues as specific incidents of a custody order under the Children’s Law Act (more commonly now referred to as a parenting order).

However, that was not what H.V. requested of the Provincial Court judge and it is not what was ordered. [ 19 ] What was ordered is the dispensing of the consent of A.M. to the removal of his name as biological father on the children’s birth certificates. There is no authority under the Act , or any other legislation, that gives the Provincial Court Judge the authority to make such an order.

As such, I must set aside the order granted on October 16, 2019. [ 20 ] However, I am hopeful that the above comments will provide some assistance to H.V. should she encounter difficulties in dealing with governmental authorities in respect of the children. CONCLUSION [ 21 ] The order of the Provincial Court Judge dated October 16, 2019 is vacated in its entirety. [ 22 ] As the Registrar did not seek any costs in respect of this appeal, each party shall bear their own costs. _____________________________ Rosalie McGrath Justice