A.N.H. APPLICANT - v. -, 2023 SKKB 272

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 272 Date: 20 23 12 15 Docket: KBG-RG-01519-2023 Judicial Centre: Regina BETWEEN: A.N.H.

APPLICANT - and - MINISTER OF JUSTICE AND ATTORNEY GENERAL FOR SASKATCHEWAN, eHEALTH SASKATCHEWAN, DIRECTOR, VITAL STATISTICS (ALSO KNOWN AS DIRECTOR, REGISTRIES, AND REGISTRAR VITAL STATISTICS), L.D.B. (FORMERLY KNOWN AS L.D.G.) RESPONDENTS Appearing: A.H. self-represented applicant L.B. self-represented respondent Laura Mazenc for the Minister of Justice and Attorney General for Saskatchewan, eHealth Saskatchewan and Director, Vital Statistics FIAT WILDEMAN J. DECEMBER 15, 20 23 I. Introduction [ 1 ] The applicant, Dr.

A.H., seeks to challenge a decision by the Registrar of Vital Statistics [Director] to register a change to his two children’s names pursuant to The Change of Name Act, 1995, SS 1995, c C-6.1 [ Act ]. By originating application, Dr. H. seeks a number of declarations and relief against the following parties: (

a) the Minister of Justice and Attorney General for Saskatchewan, eHealth Saskatchewan, and the Director [Government Respondents]; and (

b) the children’s mother, L.B. [ 2 ] The change of the children’s names is interconnected with high conflict family litigation between Dr. H. and Ms. B. in British Columbia, which has been ongoing since 2010. The family litigation has been incessant, with more than a thousand documents filed, in excess of 80 orders issued, and multiple appeals. Further, Dr. H. commenced other related civil actions against Ms. B. and individual members of the judiciary in British Columbia and has been declared a vexatious litigant by both the British Columbia Supreme Court and Court of Appeal. [ 3 ] In 2014, Ms.

B. successfully obtained an order from the British Columbia Supreme Court to relocate with the two children to Swift Current, Saskatchewan, where they have since resided. While the date of her application is not clear on the record, Ms. B. applied to Vital Statistics in Saskatchewan to change the names of the two children. Specifically, she applied to change W.C.H.’s name to W.C.G. and E.C.H.’s name to E.K.B. Ms. B. indicated that the main reason for this change was to protect the children’s identities from internet searches that would associate the children with the family litigation and Dr.

H.’s litigation behaviour.

[ 4 ] Dr. H. takes issue with Ms. B.’s right to change the children’s names. He argues that the change of their names violates court orders in the family litigation. [ 5 ] This matter came before me in relation to two preliminary issues that were raised by Ms. B. and counsel for the Government Respondents during a previous chambers appearance. The first preliminary issue relates to the status of Dr. H.’s request for the Director to annul the children’s change of names pursuant to s. 25(1) of the Act [the annulment request]. In relation to this issue, I also raised with the parties during oral argument whether Dr.

H.’s originating application should proceed further before the Director determines the annulment request. [ 6 ] The second issue is whether Dr. H. has standing to seek the relief in his originating application and to receive the record of proceeding from the Director. It is Ms. B.’s position that pursuant to an order of the British Columbia Supreme Court issued December 7, 2014 [December 2014 Order], she has sole parental responsibility to both change the children’s names and commence any proceedings related to the children. Further, it is Ms.

B.’s position she has sole parental responsibility to receive health, education or other information respecting the children from third parties. As a result, she argues Dr. H. does not have the right to commence proceedings to challenge the children’s name change nor to receive information from the Director in relation to the children’s name change. [ 7 ] In addition to these two preliminary issues, Dr.

H. filed a separate application dated November 2, 2023 (subsequently amended November 10, 2023), seeking to file four orders of the British Columbia Supreme Court pursuant to s. 24 of The Children’s Law Act, 2020, SS 2020, c 2 [ CLA ], so that they may be recognized in Saskatchewan as if they had been made here. Dr. H. also seeks a number of orders in relation to the children’s passports and an order that Mr. Francis Stewart provide expert testimony to answer three hypothetical questions outlined in Dr. H.’s application that he says relate to the standing issue. Ms. B. opposes Dr.

H.’s application. [ 8 ] For the reasons that follow, I make the following determinations: (

a) Pursuant to s. 25 of the Act , the Director may annul a change of name made pursuant to the Act if satisfied that the name change has been obtained by fraud or misrepresentation. Pursuant to s. 28 of the Act , an appeal lies to this Court if the Director orders an annulment of a change of name. As a result, Dr. H. has an adequate alternate remedy available to him under the Act , and it is not appropriate to proceed with his originating application until the administrative process is exhausted. (

b) In light of my determination above, it is not necessary to consider Dr. H.’s notice of application to file four family orders from British Columbia in Saskatchewan. I decline to convert Dr. H.’s originating application into a family law file as per his request. (

c) Dr. H. seeks relief in relation to the children’s passports that is unrelated to his application to challenge the Director’s decision to change the children’s names. The orders sought in relation to the children’s passports are properly part of the family litigation being addressed by the British Columbia Supreme Court. (

d) Given that I have ordered that Dr. H. has an adequate alternative remedy available to him under the Act , it is not necessary for me to determine Dr. H.’s application to provide the court with expert testimony in relation to his standing. [ 9 ] Accordingly, both Dr. H.’s amended originating application filed July 10, 2023 and his amended notice of application filed November 10, 2023 are dismissed. II. Analysis A. Annulment of the Children’s Change of Names 1. Introduction and

Summary of Facts [ 10 ] The first preliminary issue relates to the status of Dr. H.’s annulment request to the Director and whether I should assume jurisdiction to hear Dr. H.’s originating application when the Director has jurisdiction pursuant to the Act to grant the primary relief sought . [ 11 ] Dr. H.’s requests for relief in his originating application may be summarized as follows: (

a) orders to compel the respondents to produce all documents associated with the children’s change of names; (

b) a declaration that Ms. B. procured a change of name of the children in violation of ss. 25(1) and 27(2)(

a) of the Act and a writ of mandamus and/or order compelling the Director to annul the registration of the children’s change of name and for Ms. B. to return all certificates and notifications related to the children’s change of names to the Director; (

c) a declaration that Ms. B. failed to act and follow the procedure pursuant to s. 15(1) of the Act with respect to the children’s name change; (

d) a declaration that Ms. B. is guilty of an offence and liable on

summary conviction with respect to the children’s change of names pursuant to s. 27(2) (

a) and (6) of the Act ; and (

e) a declaration that Dr. H.’s rights pursuant to the Canadian Charter of Rights and Freedoms [ Charter ] were infringed and that this deprivation was not made in accordance with the principles of natural justice.

[ 12 ] It appears from his materials and oral submissions that the primary relief Dr. H. seeks from the court is an annulment of the children’s change of names on the basis that the change was obtained by fraud and misrepresentation pursuant to s. 25 of the Act .

Section 25 states: Director may annul registration if fraud or misrepresentation 25(1) The director may, by order, annul a change of name or a registration made pursuant to this Act if satisfied that a change of name has been obtained by fraud or misrepresentation. [ 13 ] Dr. H. also made the annulment request directly to the Director. However, due to uncertainties around the family litigation and Dr. H.’s originating application in this matter, the Director has not yet decided the annulment request. It is clear from the materials filed that once Dr.

H. discovered the children’s change of name, he undertook a flurry of activity in multiple forums seeking to challenge and reverse the children’s change of names. This served to complicate the process, with the Director seeking clarity on the status of the name change in various legal proceedings before deciding Dr. H.’s annulment request under the Act . [ 14 ] I briefly set out the chronology relevant to Dr. H.’s annulment request and the various issues that have arisen since his initial communication with the Director. [ 15 ] As previously mentioned, it is not clear on the materials filed when Ms.

B. applied to the Director to change the children’s names. However, on August 8, 2022, the Director issued a Certificate of Change of Name under the Act registering a change to the children’s names. Ms. B. notified Dr. H. of the children’s name change on August 29, 2022. [ 16 ] Shortly thereafter, Dr. H. initiated communication with the Director, requesting all documentation submitted to e-Health Saskatchewan in regard to the children’s change of names. While the initial communication to the Director does not appear to be filed with the court, the Director responded to Dr.

H. indicating that the matter had been referred to legal counsel for review. With respect to Dr. H.’s request for documentation, Dr. H. was advised to submit a request to access general and personal information under The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 [ FOIP ], as he was requesting personal information of another individual. On September 20, 2022, Dr. H. submitted a Request for Access to Information Form seeking the requested information. [ 17 ] By email dated October 12, 2022, the Director advised Dr.

H. that she understood that an application had been sent to a British Columbia court regarding the children’s name change. As a result, the Director would hold off making any decisions regarding the name change until the court made a decision. [ 18 ] Dr. H. and Ms. B. took significant effort to explain to me the sequence of events related to the children’s name change before the British Columbia Supreme Court. However, the chronology in this regard is not entirely clear. There is evidence that Ms.

B. made an application in the family litigation to obtain an order regarding a change to the children’s names in November 2021. Ms. B. explained she was seeking to provide Vital Statistics with a stand-alone order on the children’s change of names to simplify the matter and avoid protracted proceedings with Dr. H. The application was never heard by the British Columbia Supreme Court, and Ms. B. indicated that she understood her application was unnecessary and redundant of the parental rights she already had for the children. However, there was a great deal of communication between Dr.

H. and the British Columbia Supreme Court registry extending into October 2022 on the status of Ms. B.’s November 21, 2021 application and Dr. H.’s response materials. This may be the application in British Columbia the Director referred to in her communication with Dr. H. [ 19 ] By letter dated October 20, 2022, the Chief Privacy Officer for eHealth Saskatchewan denied Dr. H. access to records associated with the change of the children’s names pursuant to s. 59 (

d) of FOIP . Specifically, the Chief Privacy Officer refused to provide Dr. H. with the records because the family court order did not authorize him to “request and receive from third parties health, education or other information respecting the children.” Further, the Chief Privacy Officer advised Dr. H. he could exercise his right to review her decision by sending a request to the Saskatchewan Information and Privacy Commissioner. [ 20 ] By letter dated May 31, 2023, Dr.

H. sent a “Letter of Demand” to the Director and Chief Executive Officer of eHealth Saskatchewan demanding they take a number of actions, including annulling the name change for both children pursuant to s. 25(1) of the Act . By email dated June 5, 2023, the Director responded to Dr. H., stating that she would not be making any decisions regarding the name change until the British Columbia court made a final decision. The Director reiterated this to Dr. H. by email dated June 28, 2023. [ 21 ] Dr.

H. filed his originating application in this matter on June 30, 2023. [ 22 ] In July 2023, the parties made their first chambers appearance. The chambers judge, Justice Elson, noted that there was uncertainty as to the status of ongoing family law proceedings in the British Columbia Supreme Court and whether the change of name issue was the subject of a pending application there.

On Justice Elson’s direction, counsel for the Government Respondents wrote to the British Columbia Supreme Court on August 16, 2023, inquiring whether the children’s names were the subject of any pending application in British Columbia. [ 23 ] Justice Hardwick, who is the case management justice in the family litigation in British Columbia, provided a response by Memorandum to Parties dated August 22, 2023, indicating that Ms. B. did file a notice of application seeking orders that would allow her to legally change the children’s surnames. However, for a number of reasons, the application was not heard before Ms.

B. successfully changed the children’s names in Saskatchewan. Justice Hardwick indicated that she advised the parties she does not have jurisdiction to deal with Dr. H.’s judicial review of the Director’s decision to register a change of the children’s names. Rather, the applicable laws and rules of procedure in Saskatchewan for judicial review must govern.

[ 24 ] The parties returned back to chambers in September. In their civil chamber appearance memo filed September 8, 2023, the Government Respondents raised the issue of whether Dr. H. wanted to continue with the originating application in its current form or whether he wanted the Director to determine whether the registration of the names should be annulled in accordance with s. 25 of the Act .

The Government Respondents explained that while the Director was initially waiting for the British Columbia court to issue a further decision regarding the children’s name change, the British Columbia court had now indicated that it would not be making a decision in that regard. Accordingly, if Dr. H. wanted the Director to consider s. 25(1) of the Act , the Government Respondents requested to adjourn the matter sine die , returnable on 14 days notice. [ 25 ] As noted in the fiat of Justice Bergbusch dated September 12, 2023, during the September chambers appearance, Ms. B. also raised issue with Dr.

H. standing to challenge the Director’s decision and to obtain the record of proceedings, which issue is now before me. [ 26 ] In their oral submissions, both Dr. H. and counsel for the Government Respondents urged me to determine the preliminary issue of Dr. H.’s standing. In particular: (

a) Dr. H. seeks to obtain a copy of the records related to the children’s name change so that he can make submissions on whether it was obtained on the basis of fraud or misrepresentation. Dr. H. took the position that once he has access to these records and makes the submissions, there is nothing stopping the Director from deciding whether to annul the children’s change of names. However, Dr. H. is also asking this Court to annul the children’s change of names pursuant to his originating application; and (

b) In light of the December 2014 Order, counsel for the Government Respondents urged me to exercise my supervisory jurisdiction to determine Dr. H.’s standing to receive the records related to the children’s change of names and to commence the originating application. She submitted that while the Court’s supervisory jurisdiction in this case is discretionary, a decision on Dr. H.’s standing would provide guidance to the Director in relation to Dr. H.’s annulment request and a path for the parties to move forward. 2. Availability of an Adequate Alternative Remedy [ 27 ] As previously mentioned, Dr.

H. seeks a variety of relief in his originating application. At its essence, Dr. H. seeks to challenge the Director’s decision to change the children’s names in light of orders made in the family litigation and, in my view, is an application for judicial review. [ 28 ] The exercise of the court’s supervisory jurisdiction in the context of a judicial review is discretionary.

Applicants of a judicial review are normally expected to exhaust any forms of redress specifically provided by the legislature before they can be granted the extraordinary relief available through the court’s supervisory jurisdiction: Donald J.M. Brown & John M. Evans, Judicial Review of Administrative Action In Canada , loose-leaf (Rel 2, June 2023) vol 1 (Toronto: Thomson Reuters, 2023) at para 3:3.

As stated by the Saskatchewan Court of Appeal in Saskatoon (City) v Wal-Mart Canada Corp., 2019 SKCA 3 at para 37 , 430 DLR (4 th ) 697 [ Wal-Mart ], “in the absence of exceptional circumstances, courts should not interfere with ongoing administrative processes until the available effective remedies are exhausted or the proceedings have been completed.” [ 29 ] Where there are adequate alternative remedies available either through administrative or other judicial processes, the court may conclude that its supervisory jurisdiction should not be exercised.

In particular, when the legislature has provided a statutory appeal mechanism, this more specific statutory remedy may be intended to supplant relief available through the court’s supervisory jurisdiction. In general, “the statutory provision of a right of appeal prima facie indicates a legislative intention to exclude the courts’ exercise of their supervisory jurisdiction”: Wal-Mart at para 44 . [ 30 ] In determining whether an adequate alternate remedy is available to Dr.

H., I must consider not only the available alternatives, but also the suitability and appropriateness of judicial review in the circumstances: Strickland v Canada (Attorney General), 2015 SCC 37 at paras 43-44 , [2015] 2 SCR 713; Wal-Mart at para 51 .

This includes assessing whether the application for relief is appropriately respectful of the statutory framework within which the application for judicial review is taken and the normal processes provided by that framework and the common law for challenging administrative action. [ 31 ] In this case, s. 25(1) of the Act gives the Director authority to annul a change of name made pursuant to the Act if satisfied that it has been obtained by fraud or misrepresentation. Further, the Act provides a statutory appeal mechanism to this Court if the Director annuls a change of name pursuant to s. 25.

In particular, s. 28 reads as follows: Appeal 28(1) Any person aggrieved as a result of any of the following of the director’s decisions may appeal the decision to a judge of the Court of King’s Bench: (

a) a refusal to register an application for a change of name; (

b) an annulment of a change of name pursuant to

section 25.

(2) A person wishing to appeal shall file the appeal within 30 days of the date of the decision of the director.

(3) An appeal is to be by notice of motion and is to be served on the director and any other person that the court may direct.

(4) On hearing evidence and considering submissions of the parties, the judge may make an order affirming the decision of the director,

directing the registration of the change of name or reversing the annulment of the change of name.

(5) There is no further appeal from the order of the court mentioned in subsection (4). [ 32 ] Accordingly, the statutory framework contemplates that an application to annul a change of name should be brought to the Director in first instance. If the Director annuls a change of name, an aggrieved person may appeal the annulment to this Court. [ 33 ] While there have been issues delaying the Director’s decision under s. 25 of the Act , in my view, it is not appropriate for me to exercise my supervisory jurisdiction over Dr. H.’s judicial review application before the administrative proceedings under the Act are exhausted. I reach this conclusion for the following reasons: (

a) The British Columbia Supreme Court has now provided clarification that the children’s name change is not the subject of an application before the court in the family litigation; (

b) Based on the Government Respondents’ appearance memo for the September chambers appearance and submissions made to me in oral argument, the Director recognizes Dr. H.’s request for an annulment of the children’s change of names. However, in light of Dr. H.’s originating application, the Director sought confirmation from Dr. H. that he still wishes for the Director to make a decision on the annulment request. Dr. H. confirmed in oral argument before me that he does wish for the Director to make a decision; (

c) The statutory framework of the Act provides the Director with authority to register a change of name if the Director is satisfied that certain requirements are met (s. 10) and to subsequently annul a change of name or registration made under the Act if satisfied that it was obtained by fraud or misrepresentation ( s. 25 ). In those circumstances where the Director orders an annulment, the legislature created a statutory appeal to this Court. It would not be appropriate for me to circumvent this statutory framework to determine in first instance whether the children’s change of name should be annulled before the Director has made a decision; (

d) Dr. H. has effective recourse to pursue the relief he seeks from the Director. In other words, the alternate remedy available through the administrative proceedings is the same remedy Dr. H. seeks from the court; (

e) The preliminary issue of whether Dr. H. has standing to challenge the children’s change of names pursuant to s. 25 of the Act and to receive related records from the Director should be determined by the Director in the first instance (in this regard, I note that the Chief Privacy Officer of eHealth denied Dr. H. access to the requested records in October 2022). In my view, this Court should not exercise its supervisory jurisdiction on the preliminary issue of Dr. H.’s standing to bring the originating application until the administrative proceedings available under the Act are exhausted; and (

f) The parties have not articulated any exceptional circumstances that would make a judicial review appropriate before the administrative proceedings under the Act are complete. [ 34 ] In his originating application, Dr. H. does seek other relief besides an annulment of the children’s name change. For example, Dr. H. seeks an order that Ms. B. is guilty of a

summary conviction offence under s. 27 of the Act for making false or misleading statements in her application to the Director. This is not relief properly sought by Dr. H. in his originating application. [ 35 ] Further, Dr. H. seeks a declaration that the Director’s decision to change the children’s name infringed his Charter rights. However, this claim could be affected by the Director’s annulment decision. As a result, this aspect of Dr. H.’s originating application should not proceed until the administrative proceedings under the Act are exhausted. [ 36 ] In

summary, in my view, it is not appropriate for me to exercise my supervisory jurisdiction over Dr. H.’s application for judicial review, including determining the preliminary issue of Dr. H.’s standing, until the administrative proceedings under the Act are exhausted. B. Filing British Columbia family orders in Saskatchewan [ 37 ] Dr.

H. seeks to file four orders from the British Columbia Supreme Court related to the family litigation, namely orders of September 6, 2012, November 10, 2014, August 30, 2016, and September 28, 2023. [ 38 ] Given my findings with respect to the availability of an adequate alternative remedy, it is not necessary for me to decide Dr. H.’s application to file four family law orders in Saskatchewan. [ 39 ] During his oral submissions, Dr. H. asked me to convert his originating application into a family law file, as he seeks to enforce the British Columbia orders in Saskatchewan.

However, there are procedures for commencing a family law proceeding, and it would not be proper for me to convert an originating application seeking judicial review into a family law proceeding. C. Orders related to the Children’s Passports [ 40 ] Pursuant to his amended notice of application filed November 10, 2023, Dr. H. seeks a number of orders with respect to the children’s passports, including: (

a) An order that Ms. B. deliver the children’s passports to the Vernon Registry of the Supreme Court of British Columbia; (

b) An order that if Ms. B. does not comply with the order to deliver the children’s passports, any peace offer, including the R.C.M.P., may enter and search any place where the passports are believed to be located to retrieve the passports and immediately arrest Ms. B. and bring her before the court to determine whether she has committed a breach of the order to deliver the children’s passports; and

(

c) An order that Employment and Social Development Canada, on behalf of Immigration, Refugees and Citizenship Canada, shall immediately cease and desist issuing passports in the names of the children. [ 41 ] The relief Dr. H. seeks is not related to his originating application to challenge the Director’s decision to change the children’s names. Rather, the orders sought relate to the family litigation. I cannot order family law related relief in this matter. In any event, Dr.

H. admitted in numerous affidavits filed with the court that the Vernon Registry of the Supreme Court of British Columbia is seized of any and all matters with regards to the children in the family litigation. As a result, I dismiss Dr. H.’s application for orders related to the children’s passports. D. Expert Testimony of Mr. Stewart [ 42 ] Dr. H. seeks an order for Mr. Stewart to provide testimony on three hypothetical questions. The questions are difficult to understand but appear to relate to Dr. H.’s

interpretation of the December 2014 Order in relation to Ms. B. and his parental responsibility to change the children’s names. In light of my decision not to exercise my supervisory jurisdiction until the administrative proceedings under the Act are exhausted, I dismiss Dr. H.’s application for Mr. Stewart to provide testimony. III. Conclusion [ 43 ] Dr. H.’s amended originating application filed July 10, 2023 and amended notice of application filed November 10, 2023 are dismissed. [ 44 ] Ms. B. seeks costs against Dr. H. During oral submissions, Ms. B. expressed frustration with the litigation approach of Dr.

H. that now stems across two provinces, including the filing of numerous applications and amendments to those applications and thousands of pages of material that require her response. While this matter was commenced in Saskatchewan to challenge the Director’s registration of the children’s change of names in this province, I agree with Ms. B. that Dr. H.’s materials were excessively lengthy and often difficult to follow. In addition, Dr. H.’s approach to seeking relief in multiple forums with respect to the children’s name change has served to unduly complicate and lengthen this matter. Further, Dr.

H.’s amended notice of application filed November 10, 2023 sought relief that was related to the family litigation and not properly before the court in the context of his originating application. As a result, pursuant to Rule 11-1(4) and Rule 11-8 of The King’s Bench Rules , I order costs against Dr. H. in the amount of $2,500 payable to Ms. B. within 30 days. [ 45 ] The Director does not seek costs and asks that no costs be awarded against her. There will be no cost award with respect to the Director. J. J.R. WILDEMAN