Custance v Custance, 2022 ABKB 654

Court of King’s Bench of Alberta Citation: Custance v Custance, 2022 ABKB 654 Date: 20221003 Docket: FL03 64230 Registry: Edmonton Between: Shauna Dawn Custance Applicant - and - Shane Daniel Custance Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice B.R.

Burrows _______________________________________________________ [ 1 ] Shauna Custance seeks an order dispensing with Shane Custance’s consent to a change to the names of the parties’ two children, now aged 7 and almost 5. [ 2 ] I understand that since the commencement of these proceedings, the Applicant mother, has ceased to use the surname, Custance, and uses the surname she had prior to her marriage to Shane Custance in July 2015, which is the surname, Lagore. Ms. Lagore seeks to have the childrens’ surname changed to “Lagore-Custance”. Mr. Custance does not consent to that proposed change. [ 3 ] Ms.

Lagore’s application is pursuant to the Vital Statistics Act RSA 2000, c V-4, s. 23 . The

section permits a parent of a child to apply to change the child’s last name. The

section provides that both of the parents listed on the child’s birth record must consent to the proposed name change except where, “there is a court order under

section 69 dispensing with the other parent’s . . . consent.” [ 4 ]

Section 69 provides:

(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.

[5] Ms. Lagore acknowledges that she bears the onus of proving on a balance of probabilities that the name change she seeks isin the best interests of her children. [6] Parenting and support issues have been resolved, at least for the time being, by an Interim Without Prejudice Consent Order,granted on February 5, 2021. Pursuant to that Order, the parties have equal parenting time with the children. The parties share equallyall decision-making in respect of the children. Mr. Custance is required to pay child support. The Order provides that Ms. Lagore isentitled to spousal support.

But, the Order records, because Mr. Custance was unable to pay such support at the time of the order,spousal support was reserved. [7] The Order does not mention the issue of changing the children’s last names. [8] A further Interim Without Prejudice Consent Order was granted on August 31, 2021 at an Early Intervention CaseConference. It required that the parties retain the services of a Parenting Coordinator. The parties did so on May 25, 2022. Mr. Custance’s previous agreement to the change [9] On November 2, 2021, Counsel for Ms. Lagore, in an email to former Counsel for Mr.

Custance, said, “. . . my client advisesthat she wishes to hyphenate the children’s names to Lagore-Custance. I trust there will be no opposition to this.” [10] On November 8, 2021, Mr. Custance’s former Counsel replied, “My client agrees to have the children’s surnameshyphenated. He asks that Ms. Lagore put in all required legwork and bear the cost of the same. He will sign whichever documents arerequired to accomplish the name change.” [11] In February, 2022 Ms. Lagore texted Mr. Custance seeking their son’s birth certificate. Mr.

Custance asked why she wantedit and she replied that she needed it for the name change. Mr. Custance’s reply indicated that he had not agreed to the name change. Hetexted: No you have not discussed with me. The only thing that was received was a request to look into it. I said if that was going to happenthan (sic) I would require a complete set of new legal documents of tge (sic) kids names at your expense but never heard back. Alsodon’t you think there are more important matters tgat (sic) should be dealt with right now? [12] Ms. Lagore submitted that Mr.

Custance’s agreement to the name change, as communicated in his former Counsel’sNovember 8, 2021 email, is of significance in this application. [13] I disagree. That Mr. Custance agreed to the name change in November, 2021, (if he did) has no significance to the issuebefore me which is whether the proposed name change is in the best interests of the children. [14] If Ms. Lagore seeks to enforce a contractual obligation by which she alleges Mr. Custance is bound, this application is not theproper procedure for doing so. The document commencing this application seeks an order dispensing with Mr. Custance’s consent.

Itdoes not seek the enforcement of his alleged agreement to consent. [15] In my view, that Mr. Custance may have consented to the name change in November 2021 has no significance in thisapplication. Best Interests of the Children [16] Counsel referenced several cases in their submissions: Wintermute v. O’Sullivan, (ABQB) [17] The father sought an order prohibiting his former wife, and their ten-year-old child’s mother, from using the surname sheadopted when she remarried, the surname of her second husband, for the child. The mother was not applying to change the child’sname.

The child, like her step-father, was involved in rodeos and competed under the step-father’s name. In other circumstances, suchas at school, she used her birth name. The father sought an injunction against the mother using any name other than the child’s birthname, his surname, in reference to the child. [18] Sinclair J listed six factors which were set out in a text, Davies, Family Law in Canada (1984) p 32, as being factors thatcourts should consider in a case of this kind: (para 7) - (

a) The welfare of the child is the paramount consideration. - (

b) The short and long term effects of any change in the child’s surname. - (

c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or careand control. - (

d) Any confusion of identity which may arise for the child if his or her name is changed or not changed. - (

e) The effect which any change in surname may have on the relationship between the child and the parent whose name the childbore during the marriage. - (

f) The effect of frequent or random changes of name.

[ 19 ] These have come to be known as the “ Wintermute factors”. [ 20 ] Sinclair J appears to have applied the third factor. He denied the injunction because of the embarrassment the child would feel in the rodeo community, if required to change her competition name. [ 21 ] Sinclair J did not articulate how he concluded that the evidence supported the conclusion that the child would be caused embarrassment if required to stop using the step-father’s surname at rodeos.

I assume he derived that conclusion from the mother’s evidence that the step-father was a rodeo participant and the child travelled with him to rodeos and had become known among other rodeo participants by her step-father’s surname. The mother deposed that the child insisted on competing under that name. As the use of the step-father’s surname was restricted to her participation in rodeos, he denied the injunction. [ 22 ] Ms. Lagore’s counsel acknowledged that Wintermute factors b, c and d were not engaged in this case.

She also acknowledged that there was no evidence, other than the mother’s opinion, that the hyphenated surname sought would improve, support, or in any way affect the relationship between Ms. Lagore and the children. She acknowledged that there was no evidence in this application of any deficiency in that relationship. Smalley v Hoppe , 1999 ABQB 931 [ 23 ] After the parties divorced, the mother remarried and adopted the surname of her new husband. The mother sought an order permitting a change of the surnames of the parties’ children to her new surname. The father denied his consent.

The mother had sole custody of the children. The father was not exercising access to the children. He was however paying significant child support and was in the process of seeking access. [ 24 ] Viet J referenced the Wintermute factors. She noted that the mother had presented essentially no evidence on any of those factors. She observed: (para 11) . . . the very fact that the Legislature requires the consent of Mr.

Hoppe to a proposed change of surname of the children of the marriage means that the court should not dispense with that requirement lightly. [ 25 ] In denying the application, Viet J noted that in the absence of evidence it was difficult to conclude that: (para 13) . . . there would be any embarrassment on the part of the children in not having the same name as their mother, especially in this society where married women are frequently keeping their maiden names, and where there are so many blended families. [ 26 ] The evidence before me in this case does not even suggest any current or prospective embarrassment on the part of the children resulting from their mother’s surname being different from theirs.

Pulkinen v Munden , 2013 ABQB 139 [ 27 ] The mother of two daughters, aged 6 and 4 sought to have the children’s last names hyphenated. The mother believed such a change would be in the best interests of the children because it would identify the children as belonging to both parents, would eliminate confusion as to whether or not she was their mother, would eliminate the older child’s confusion as to why her mother’s name was different from hers, and would preserve the mother’s family name despite there being no males in the children’s generation.

The father submitted that it had not been shown that the proposed change was in the children’s best interests. [ 28 ] After reviewing many relevant authorities from many Canadian jurisdictions, Graesser J concluded that the evidence did not show that the proposed change was in the best interests of the children. He said: (paras 47 and 48) 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. . . . the emotional needs of the parents are not a determining factor. [ 29 ] In the case before me, the evidence supports the conclusion that Ms. Lagore’s emotional needs would be served by the change she seeks. But that is not a determining factor. JEB v JS, 2020 ABQB 437 [ 30 ] The parties were the separated parents of a six-year-old child. The mother had primary care. The father parented the child two weekends a month and had midweek access. The father sought shared parenting.

The mother sought to change the child’s surname to a hyphenated surname. Both parties sought several other changes to the parenting arrangements. [ 31 ] Laparco J granted the father shared parenting.

She also granted the mother’s application for a hyphenated surname. [ 32 ] As to the change of name application, Laparco J noted that the mother’s evidence of difficulties that would arise if the child’s last name was not hyphenated, were speculation: (para 48) The mother’s concerns in this regard are not based on experience; while the name change might make dealing with various government authorities and agencies more convenient for her, the speculation alone is insufficient to justify such a change.

Canadian agencies are experienced in dealing with a variety of different family name situations. [ 33 ] Even so, the Court was satisfied that it was in the child’s best interests to have a connection in name and identity with both his parents. Laparco J took judicial notice that a child is better served by maintaining healthy links with both parents. She concluded: The name change proposed by mom would not exclude either parent or the half-brother from identifying with the child. The child is also

young enough such that it will likely not cause confusion, discomfort, or negatively impact his relationship. If anything, it will enhance his connection and identity with his mother’s family, which is desirable. [ 34 ] It is not clear to me what evidence there was to support this conclusion. The proposition that a child is better served by maintaining healthy links with both parents is obviously beyond dispute. But whether, and if so the extent to which, such healthy links are supported by a hyphenated surname is not, in my view, obvious.

Also, that such a change would not cause confusion, discomfort or otherwise negatively impact a child who is 7 or 5 (as the children in the matter before me are) is not, in my view, something that should be assumed without credible and reliable evidence. BDO v DKG , 2020 ABQB 514 [ 35 ] The parties had never been married. They had a two-year-old child who, at birth, was given the mother’s surname. The father sought to have the child’s name hyphenated to contain both his and the mother’s surnames. The mother did not consent. [ 36 ] Mah J granted the father’s application. He referenced the “ Wintermute factors”.

He noted (para 37) the father’s argument that, “given [the child’s] young age, she will benefit from a name that reflects both of the families and the parents that love her, and recognizes the bond that she has or will have with each of them.” He decided that a hyphenated surname served the best interests of the child “by maintaining and strengthening the bond with the father”.

He considered it significant that the mother had not “made a sufficient case for denying the hyphenated name”. [ 37 ] It is not clear what, if any, evidence was before the court to support the conclusion that a hyphenated surname would be of benefit to the child. There is no reference to any expert opinion evidence. Whether the Court can take judicial notice that a child of separated parents benefits from having a hyphenated surname is not discussed. [ 38 ] I note as well that Mah J appears to have considered it significant that he could not discern a reason for the mother’s refusal to consent.

He noted (para 37) that the mother had “not articulated in any meaningful way how the Wintermute factors militated against allowing a hyphenated surname” (para 37). In my view, given that the onus is on the applicant to prove that the name change is in the child’s best interest, the absence of a rationale for the refusing parent’s objection is of little relevance. The question is whether the applicant has proved that the proposed change is in the child’s best interests, not whether the opposing parent has a good reason for refusing consent.

Trociuk v British Columbia (Attorney General) 2003 SCC 34 [ 39 ] The parties, who never lived together, were the parents of triplets. The mother registered the births without involving the father. She indicated that she did not acknowledge that he was in fact the father. The father was not identified in the birth registration documents. As he was not referenced in the birth registration, the BC legislation precluded the father from seeking to have the records amended to include his particulars. He challenged the legislation as being a violation of the Charter s 15 equality rights.

The SCC agreed and held that the father’s Charter s 15 rights were violated and not saved by Charter s. 1. [ 40 ] Deschamps J, writing for the Court, noted the importance of a parent being recognized as such on a child’s birth records: (paras 16 and 17) [A birth registration] evidences the biological ties between parent and child, and including one’s particulars on the registration is a means of affirming those 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 which some parents participate in a child’s life. . . . Contribution to the process of determining a child’s surname is another significant mode of participation in the life of a child. For many in our society, the act of naming a child holds great significance.

As Prowse J.A. notes, naming is often the occasion for celebration and the surname itself symbolizes, for many, familial bonds across generations. [ 41 ] In my view these observations are of little assistance in the case before me. It is consistent with them that Ms. Lagore has brought this application. But they do not speak in any way to the best interests of the children whose names she seeks to change. Nothing in the case supports the conclusion that it is in the best interests of the children in the case before me that their surnames be hyphenated. Conclusion [ 42 ] In my view, Ms.

Lagore has not proved that it is in the best interests of her children that their surnames be changed to Lagore- Custance. [ 43 ] I accept that Ms. Lagore genuinely believes that it would be desirable for such a change to be made. I accept that she views Mr. Custance’s refusal to consent as nothing but unreasonable obstinance. [ 44 ] I cannot rely on Ms. Lagore’s lay opinion that inconvenience, embarrassment or confusion would result from her children’s name not including hers.

Such a lay opinion is not admissible. [ 45 ] Further, in my view, neither the proposition that a child whose surname includes that of a parent has a closer connection to that parent than would otherwise be the case, nor the proposition that a child with a hyphenated surname is more likely to know and appreciate their heritage, is a proposition of which I can take judicial notice. [ 46 ] I accept that proving that a change to a hyphenated surname is in the best interests of the child is extremely difficult. The

Legislature has set a very high bar for a parent in Ms. Lagore’s position to jump over. Indeed, practically, it may be an insurmountably high bar. [ 47 ] But the relevant legislation requires me to be satisfied that the proposed change is in the children’s best interest. The evidence before me does not so satisfy me. I must dismiss the application. [ 48 ] The application is dismissed. [ 49 ] If Counsel cannot agree on costs, they may provide each other and me with their submissions on costs by October 31, 2022 and I will make a costs disposition. Heard on the 21 st day of September, 2022.

Dated at the City of Edmonton, Alberta this 3 rd day of October, 2022. B.R. Burrows J.C.K.B.A. Appearances: Lorraine M. Snyder for the Applicant Jordan Bienert for the Respondent