Bromley v. Furlong, 2012 NLCA 56

Date: 20120830 Docket: 12/01 Citation: Bromley v. Furlong , 2012 NLCA 56 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : VICTORIA BROMLEY (FURLONG) APPELLANT AND : ROBERT FURLONG RESPONDENT Coram: Wells, Welsh and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (Family) 200802U0133 Appeal Heard: May 16, 2012 Judgment Rendered: August 30, 2012 Reasons for Judgment by Welsh J.A. Concurred in by Wells and White JJ.A. Counsel for the Appellant: Bob Buckingham Counsel for the Respondent: Melanie Del Rizzo

Welsh J.A.: [ 1 ] The issues in this appeal arise from the parties’ disputes regarding the child of their marriage. The parties married on October 26, 2002 and separated in February 2008. Their child was born on November 26, 2007. An order of the Court on April 16, 2009 dealing with parenting issues provided for joint custody with a detailed two-week

schedule giving each parent equal time with the child. The appeal focuses on decisions of the applications judge regarding Ms. Bromley’s application to change the child’s surname from Furlong to Bromley-Furlong, a contempt application brought against Mr. Furlong, and the order as to costs. BACKGROUND [ 2 ] This was an acrimonious separation. To facilitate communications with respect to the child, the parties were required to use a journal. In the decision under appeal, the applications judge summarized earlier judicial interventions ( 2011 NLTD(F) 51, 314 Nfld. & P.E.I.R. 352 ): [6] In January 2011, Mr.

Furlong filed an Originating Application to vary the Parenting Order on the basis that (contrary to paragraph 76 of the Decision) Ms. Bromley had refused to allow him input into major decisions respecting [the child], and refused mediation to resolve differences. He suggested, therefore, that joint custody was not workable. [7] Also in January 2011, Mr. Furlong received leave to file an Interim Application seeking permission to travel with [the child] to Mexico for a vacation with [the child’s] paternal grandparents. This was set for March 21, 2011. I note that at paragraph 5 of the Application, Mr.

Furlong also sought to have Ms. Bromley declared in contempt, but the Application did not conform to the requirements of Rule 53 ( Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D.) [requiring leave of the Court]. In any event, counsel for Mr. Furlong subsequently indicated that she preferred to resolve her client’s problems with [the child’s] parenting pursuant to s. 41 of the Children’s Law Act , R.S.N.L. 1990, c. C-13. [8] On February 4, 2011, Ms. Bromley filed an Interim Application seeking to change [the child’s] surname, however she filed no Affidavit in support. [9] Also, in February 2011, Mr.

Furlong filed an Interim Application seeking compensatory time with [the child] as a result of time missed after February 9, 2011, when Ms. Bromley allegedly withheld [the child] from his father. … [11] On March 21, 2011, Paquette, J. ordered that the parenting plan set out in Fry, J.’s April 2009 Order recommence effective March 25, 2011. [12] On May 11, 2011, Ms. Bromley filed an Application for enforcement of access pursuant to s. 41 of the Children’s Law Act . [13] On June 13, 2011, Paquette, J. once again ordered that the shared parenting regime be reinstated immediately. [14] On August 5, 2011, Ms.

Bromley (acting on her own behalf) filed an Interim Application for a Contempt Order, but did not seek leave as required by Rule 53. [15] The parties appeared before me on September 29, 2011, at which time I addressed the deficiencies on the various Applications filed by Ms. Bromley, and I made a Procedural Order. October 17, 2011 was set for the hearing of all outstanding Applications, and I ordered that no further Interim Applications could be filed without leave. (For convenience, all references to the appellant as Ms. Furlong in the decision under appeal have been changed to Ms.

Bromley.) [ 3 ] As a result of the October 17 th hearing, the applications judge refused Ms. Bromley’s application to change the child’s surname to Bromley-Furlong. She found Mr. Furlong in contempt of portions of the order. By way of remedy, Mr. Furlong was denied one vacation period he would otherwise have had with the child. As well, Mr. Furlong was ordered to pay costs of the contempt application on a solicitor and client basis. However, based on Ms. Bromley’s inappropriate conduct, the judge ordered that she be deprived of those costs. Finally, aside from the contempt application, the judge found that Mr.

Furlong had been largely successful on the issues before the Court. She, therefore, awarded him party and party costs regarding those matters. These decisions form the basis for this appeal. ISSUES [ 4 ] At issue in Ms. Bromley’s appeal is whether the applications judge erred: (1) by denying Ms. Bromley’s application to change the child’s surname from Furlong to Bromley-Furlong; (2) in depriving Ms. Bromley, by reason of inappropriate conduct, of the solicitor and client costs awarded in the contempt application; and (3) in awarding party and party costs against Ms. Bromley in respect of the remaining matters.

ANALYSIS Change of the Child’s Surname [ 5 ] Ms. Bromley applied to have the child’s surname changed from Furlong to Bromley-Furlong. Her purpose, she says, was to reflect her family connection in the child’s name. Mr. Furlong opposed the application on the basis that the child is named after him and his father. The applications judge recognized that hyphenated surnames are becoming more common, but rejected Ms. Bromley’s application on the basis that her request was motivated by bad faith and that no unnecessary changes should be made affecting the child: [57] In light of my earlier conclusion on Ms.

Bromley’s lack of respect for Mr. Furlong as a joint parent, I conclude that her negative

attitude towards her ex-husband has motivated her Application for a change to [the child’s] surname and is evidence of bad faith. Asimilar conclusion led to a denial to the mother’s request in R.J.H. v. C.C.H, 2007 MBQB 261. My conclusion is the same. [58] Based on the analysis above, I am not satisfied that it is in [the child’s] best interests to have a change in his surname at thistime. I accept, in fact, that in light of the stress and turmoil his family has endured since the separation of his parents, whenever possible,any change affecting him should be avoided and consistency/stability promoted. [6] Under

section 25(

a) of the Children’s Law Act, all incidents of custody of a child are to be determined based on the bestinterests of the child. In determining the child’s best interests, section 31(2) of that Act specifies that “a court shall consider all the needsand circumstances of the child, including”, as relevant in this case, “(

a) the love, affection and emotional ties” between the child andthose persons entitled to custody of the child, and “(

f) plans proposed for the care and upbringing of the child”. [7] The applications judge based her decision largely on what she determined was Ms. Bromley’s inappropriate reason forrequesting the name change, that is, her negative attitude toward Mr. Furlong. In some circumstances, evidence of bad faith by anapplicant for a change to a child’s name may be a valid consideration in determining the best interests of the child. For example, inRattai v.

Wyrzykowski, 2004 MBCA 155, 244 D.L.R. (4th) 765, Monnin J.A., for the Court, affirmed the decision of the motions judgethat the requested change of name for the children was not in their best interests, explaining: [12] If one reads between the lines of the materials filed by both parties, one quickly realizes that both of these parents bearconsiderable animosity towards one another and that the issue of the change of names of the children is but another battle in the ongoingwar. The change that the mother seeks is difficult to understand and rationalize except in a context of “I will show you”.

It comes acrossas petty and vengeful. [8] In Ms.

Bromley’s affidavit attached to her application to change the child’s name, she gave as her reasons: the child “is not ofsuch an age a Court ordered change in his surname would affect his self-identification, knowledge of himself, or cause any confusion inthe community”; to include both parents’ surnames would “indicate to school officials, medical officials, federal and provincialgovernments and passport authorities an obvious and direct link between [the child] and myself as his mother” and would reflect his“dual family and roots”; the hyphenated surname “would show that [the child] has both parents in his life” and “would provide a linkagevia surname to my extended family”; and it is “widely accepted” in today’s society for a child’s surname to include the surname of bothparents. [9] These factors were not discussed in the applications judge’s decision.

Rather, the judge relied on her conclusion that Ms.Bromley lacked respect for Mr. Furlong as a joint parent and that the application was motivated by Ms. Bromley’s negative attitude. Thejudge also indicated that, because there were no other children in either household with a different surname, there was no reasonableexpectation that there would be confusion or that the child would question why his surname was different from other children in thehousehold.

Regarding the best interests of the child, the judge concluded that a change in the child’s surname “at this time” would notbe in his best interests because “any change affecting him should be avoided” given the turmoil that has existed since his parents’separation. [10] For the following reasons, I am satisfied that the applications judge erred by failing to take into account relevant factors and byfocusing on her assessment of Ms. Bromley’s attitude toward Mr. Furlong, rather than on the best interests of the child. The decision inHornan v.

Hornan, 2007 MBQB 261, [2008] 1 W.W.R. 338, relied on by the applications judge at paragraph 57, is distinguishable. InHornan, the applicant sought to change the child’s name from Emily Kathleen Hornan to Emily Colette LeBrun, Colette being theapplicant’s first name and LeBrun being her maiden name. The effect was to eliminate the father’s surname. That is not the situation inthe case before this Court. Ms. Bromley seeks only to add her maiden name to the child’s surname, providing a connection to bothfamilies. [11] In T.T. v.

J.H., 2010 NLUFC 4, 295 Nfld. & P.E.I.R. 1, the father’s application to have his surname added to the child’ssurname resulting in a hyphenated surname was dismissed on the basis that it was not in the child’s best interests. In that case, the mainconsideration was that the child and his sister, who had different fathers, neither of whom was married to the mother, both had the samesurname, that of the mother. The judge concluded that maintaining this situation was in the child’s best interests.

On this basis, T.T. isdistinguishable from the case now before this Court. [12] The applications judge here was also the judge in T.T. In both cases, she made reference to the negative motivation or bad faithof the applicant for the change to the child’s name. The foundation for taking this factor into account is unclear. As noted above, insome circumstances, it may be relevant to the extent that it relates to the best interests of the child. Section 11(2)(b)(ii) of the Change ofName Act, 2009, SNL 2009, c.

C-8.1, provides that the registrar general may refuse to grant a change of name where, in the registrargeneral’s opinion, “the change of name is sought for an improper purpose”. To the extent that this provision may be relevant, it mustrelate to the assessment of the best interests of the child. [13] In the decision in L.M.D. v. J.R.S., 2010 NBQB 188, 365 N.B.R. (2d) 104, French J. reviewed case law addressing variousscenarios that arise when a request is made to change a child’s surname.

Perhaps the simplest case is the one at issue in the case nowbefore this Court: that is, the mother, having joint custody of the child, applies to have her maiden name added to the child’s surname. The father’s surname remains as part of the child’s name. This is distinguishable from, for example, Hornan where the applicant soughtto have the father’s surname removed. [14] In explaining his decision, French J. began by reference to the decision of the Supreme Court of Canada in Trociuk v.

BritishColumbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835, in which registration of a birth under the Vital Statistics Act of BritishColumbia was at issue. For purposes of applying the reasoning in that decision by analogy, French J. quoted from Trociuk: [15] Before turning to the case law relied on by Dr. S in his opposition to the requested change and other reported decisions, thecomments of the Supreme Court of Canada in D.W.T. [Trociuk] v. British Columbia (Attorney General) et al., 2003 SCC 34, [2003] 1 S.C.R. 835, [2003] S.C.J.

No. 32; 304 N.R. 201; 183 B.C.A.C. 1; 301 W.A.C. 1, in relation to a parent’s interest androle in the naming of a child, and the connection to the best interests of the child, provide an informative backdrop to the analysis

required in the present case. [16] … “… A birth registration is not only an instrument of prompt recording. It evidences the biological ties between parent and child, andincluding one’s particulars on the registration is a means of affirming these ties. Such ties do not exhaustively define the parent-childrelationship.

However, they are a significant feature of that relationship for many in our society, and affirming them is a significantmeans by which some parents participate in a child’s life. … … “… transmission of the surname remains the symbol of filiation, and it is not normal to deny to women any possibility of seeing theirsurnames passed on to their children …” [15] Applying these comments in the context of an application by a parent to change a child’s name, French J. explained: [27] Even before the decision in Trociuk [cited earlier as D.W.T.], there was a premise that in an application to change a child’sname, absent other factors, there is “no reason to prefer the continuity of one family name over that of another” (see Bachinsky v.Bachinsky (1985), (MB KB), 34 Man.

R. (2d) 222 (Q.B.)) and that the use of the family names of both parents isconsistent with a child’s best interests. [16] This conclusion is consistent with the legislative approach taken to the registration of a child under the Vital Statistics Act,2009, SNL 2009, c. V-6.01. Section 7(1) applies where the parents cannot agree on the child’s surname at the time the child isregistered: The birth of a child shall be registered showing as the surname of the child the surname chosen by the parent of the child and the otherparent of the child, if there is one, as determined under

section 5, and where the parents cannot agree on the surname of the child, thesurname shall be the hyphenated combination of the surname of the parents, in alphabetical order. (Emphasis added.) It is reasonable to infer from that provision the existence of legislative policy that, in general, where parents of young children are unableto agree on the surname of their child, the name should be “the hyphenated combination of the surname of the parents, in alphabeticalorder”. [17] I would note, as well, the comment in L.M.D., at paragraph 28, regarding the father’s concern that a hyphenated surname toinclude the mother’s surname would diminish his relationship with the child.

The judge concluded that the “emotional needs of thefather is not the test to be applied on this issue. The best interests of the child must be the test.” [18] In L.M.D., French J. concluded: [35] There is little evidence of the awkwardness or difficulties alleged by L.D. However, Dr. S’s argument that there is no reason tochange CHS’s surname, without more, does not weigh heavily when measured against a name that would demonstratively recognizeCHS’s relationship with both parents and the continuity with their families.

The Supreme Court of Canada in Trociuk and other reporteddecisions referred to above, recognize the significance of a child’s surname and its importance to the connection between a child and thechild’s parents. These authorities make it clear that including the name of both parents is consistent with a child’s best interests. This isnot a random change of name. Nor is it a request without a purpose.

In the absence of any evidence to suggest that CHS’s existingsurname – the name of only one parent – is in his best interest or otherwise preferable in the circumstances, a surname that includes thenames of both parents cannot be rejected simply on the basis that the status quo should prevail.

Not only is there no reason why thename should not change but also, in the circumstances of CHS, given his young age (he was still three when the initial application wasfiled) and close relationship with both parents, he will benefit from a name that reflects his connection to two separate families. [19] These principles and conclusion apply equally in the case now before this Court. The child is young and a close relationshipwith both families is being encouraged through the joint custody arrangement. Adding the mother’s surname will serve to reduce thepossibility of confusion in the community.

Animosity between the parents, which is to be strongly discouraged in the interests of thechild, or the preference of Mr. Furlong that the child have his name are not factors that, in the circumstances, should be paramountconsiderations in determining the best interests of the child. [20] The same conclusion applies to maintaining the status quo because “any change affecting [the child] should be avoided andconsistency/stability promoted” (decision of the applications judge, at paragraph 58). In the circumstances, the requested change cannotbe refused simply on the basis that all changes should be avoided.

Such a conclusion would ignore relevant factors such as the principlesreferenced in L.M.D., the nature of the change requested, the rationale for the name change set out in Ms. Bromley’s affidavit, the youngage of the child, and the reasonably inferred legislative policy of the Province. [21] In

summary, the applications judge erred by failing to determine Ms. Bromley’s application to change the child’s surnamebased on the child’s best interests. The appeal on this issue is allowed. Ms. Bromley is authorized to proceed to have the child’ssurname changed to Bromley-Furlong. The Parenting Order – the Contempt Application Brought by Ms. Bromley [22] The applications judge concluded that, in May 2011, Mr. Furlong was in contempt of terms of the April 2009 order. The judgeexplained the basis for that finding: [22] … I am satisfied from the evidence presented that the following facts have been established:

1) Paragraph 5 of Fry, J.’s Order set out the regular parenting

schedule in clear and precise terms. Mr. Furlong was aware of the

schedule and had been following it. He was entitled to have [the child] on May 2 and 3, 2011, but Ms. Bromley refused to allow [the child] to go with his father as a result of an argument between Mr. [Furlong] and Ms. Bromley. 2) Under the terms of the Order, Mr. Furlong should next have had [the child] in his care on Friday, May 6, but he removed [the child] from his daycare on May 5 and retained him in his care until May 27, 2011. 3) Mr. Furlong’s actions resulted in [the child] losing three weeks from his daycare and approximately nine days of care from his mother. In addition, Mr.

Furlong’s behaviour deprived Ms. Bromley of Mother’s Day with [the child], which was a clear requirement of paragraph 8 of Fry, J.’s Order. 4) Mr. Furlong’s actions were deliberate. He admitted withholding [the child] in this period and justified his actions on the basis that he had a longstanding frustration with Ms. Bromley over the terms of joint custody. He refused to bring [the child] to daycare because he speculated that once he did so, Ms. Bromley would remove him again and refuse to return to the regular schedule. In short, Mr.

Furlong took the law into his own hands. [ 23 ] The remedy imposed was twofold. First, Ms. Bromley was granted compensatory time. This was accomplished by denying Mr. Furlong one of the two 2011 vacations with the child to which he would have been entitled under the parenting order. Second, Ms. Bromley was awarded her solicitor and client costs on the contempt application, “to be taxed on the basis that the contempt proceedings consumed one-half of the time spent in court on October 17, 2011” (decision of the applications judge, at paragraph 29). [ 24 ] However, having found Mr.

Furlong in contempt, the applications judge next reviewed the conduct of Ms. Bromley: [30] [Counsel for Mr. Furlong] submits that the overarching issue in this case is Ms. Bromley’s lack of respect for and refusal to abide by the terms of the joint parenting arrangement ordered 30 months ago. In paragraph 3 herein, I mentioned that Fry, J. had taken the time to explain the expectations of [the child’s] parents flowing from the term “joint custody.” Nevertheless, I conclude that Ms.

Bromley has acted in a manner which suggests that she has sole custody of [the child], and she has not acted within the spirit and intentions of the joint custody Order. [ 25 ] The applications judge pointed to Ms. Bromley’s unilateral actions in changing the child’s daycare and in registering the child in a public school when Mr. Furlong wanted the child to attend a private school. In addition, Ms. Bromley unilaterally discontinued use of the journal. The judge explained: [31] It is not disputed that Ms. Bromley chose to change [the child’s] daycare facility without consultation with Mr. Furlong.

Similarly, there was no evidence before me to dispute [counsel for Mr. Furlong’s] submission that Ms. Bromley unilaterally registered [the child] at St. Theresa’s public school despite Mr. Furlong’s wish that his son attend St. Bon’s private school. These are not the actions of a parent who is committed to joint parenting. [32] In addition, it is acknowledged that Ms. Bromley no longer utilizes the journal required for communication with Mr. Furlong, which is a clear requirement of Fry, J.’s Order, at paragraph 12. I accept that she discontinued the practice on the basis that Mr.

Furlong’s comments in the journal were disrespectful, but that does not relieve her of the obligation to communicate with Mr. Furlong for [the child’s] sake. [33] Once again, Fry, J.’s Order was clear. The purpose of the journal was to exchange information regarding their son’s care, developmental milestones, food likes and dislikes, scheduled activities and appointments and requests for changes in the regular schedule. By withholding the journal or refusing to use it, Ms. Bromley has deprived [the child] of an important exchange of information.

This cannot be condoned. [ 26 ] In the result, the applications judge applied rule 56A.26(2) of the Rules of the Supreme Court, 1986 , which authorizes a judge to deprive a successful party of costs where that party “has behaved unreasonably”. In the result, the judge concluded: [36] At paragraph 29 herein, I awarded Ms. Bromley her solicitor and client costs on her successful Contempt Application.

In light of her failure to abide by the spirit and intent of the April 16, 2009 Order generally, I would, pursuant to Rule 56A. 26(2)(a), deprive her of these costs. [ 27 ] This was a discretionary decision of the applications judge in which she provided ample reasons for her conclusion that, while Mr. Furlong was guilty of contempt, Ms. Bromley’s conduct was such that she should, nonetheless, be denied the second element of the remedy awarded against Mr. Furlong, that is, costs. [ 28 ] For purposes of the appeal on this issue, Ms. Bromley focused on the facts that, while Mr.

Furlong had been found in contempt of the court order, she had not, and that she had good reasons for discontinuing use of the journal, in particular, Mr. Furlong’s rude and disrespectful attitude which she submitted amounted to harassment. However, the applications judge dealt with those considerations in exercising her discretion to deny Ms. Bromley the costs previously ordered as a remedy for Mr. Furlong’s contempt. [ 29 ] Both parties took the law into their own hands, refusing to comply with certain terms of the Court order. The proper course of conduct for Ms.

Bromley would have been to make an application to the court, rather than to unilaterally discontinue the use of the journal, the only method by which the parents could communicate about issues arising by virtue of the joint custody order. By taking actions contrary to the terms of the order, Ms. Bromley failed to act in the best interests of the child. [ 30 ] In the result, there is no basis on which to disturb the discretionary decision of the applications judge to deprive Ms. Bromley of her costs of the contempt application. Accordingly, the appeal on this issue is dismissed. Costs

[ 31 ] On the issue of costs, the applications judge concluded: [63] Since I have addressed costs on the issues of Mr. Furlong’s contempt and Ms. Bromley’s breach of the April 16, 2009 Order, I am restricted now to the issue of costs on the vacations, the related issue of [the child’s] passport and the proposed change of name. Since Mr.

Furlong was largely successful on these issues, I would award him his party and party costs on these matters, representing one-half day in Court and to be taxed on column 3. [ 32 ] On the conclusions drawn by the applications judge, her exercise of discretion respecting costs cannot be questioned. However, as a result of this appeal, the judge’s conclusion that Mr. Furlong was largely successful on the enumerated issues no longer applies. Ms. Bromley succeeded on appeal with respect to her application to change the child’s name. The issues regarding vacations and the passport were not appealed.

Accordingly, the judge’s decision that Mr. Furlong was largely successful on those matters is undisturbed. [ 33 ] In the result, taking into account Ms. Bromley’s success on the change of name issue, the parties had approximately equal success as to the specified matters heard on October 17, 2011. A similar conclusion applies to the appeal, Ms. Bromley having been successful on one of her grounds of appeal. It is, therefore, appropriate that each party shall bear his or her own costs of both the Unified Family Court proceedings and the appeal.

SUMMARY AND DISPOSITION [ 34 ] In

summary, the applications judge erred in refusing Ms. Bromley’s request to change the child’s surname from Furlong to Bromley-Furlong. The appeal on that issue is allowed. Ms. Bromley is authorized to proceed to have the child’s surname changed to Bromley-Furlong. [ 35 ] There is no basis on which to interfere with the applications judge’s discretion to deprive Ms. Bromley of the costs otherwise awarded to her in respect of the contempt application against Mr. Furlong.

The appeal on this issue is dismissed. [ 36 ] Given that each party had approximately equal success regarding the matters dealt with in the decision under appeal, each shall bear his or her own costs in both this Court and the Court below. ______________________________ B. G. Welsh J.A. I Concur: _____________________________ C. K. Wells J.A. I Concur: _____________________________ C. W. White J.A.