JTS v JB, 2022 ABKB 791

Court of King’s Bench of Alberta Citation: JTS v JB, 2022 ABKB 791 Date: 20221128 Docket: FL01 37140 Registry: Calgary Between: JTS and ES Applicants - and - JB Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] This is an application by JTS and ES ( Applicants ) to change the surname of two children ( Children ) who are 8 and 9 years old. JTS is the mother ( Mother ) and JB is the father ( Father or Respondent ) of the Children. The Children’s current surname (B-

B) is hyphenated with the Father’s surname followed by the Mother’s previous surname (her birth surname). The Mother and Father’s relationship ended several years ago. [ 2 ] ES is the Mother’s new husband. The Children reside with the Mother and ES, together with ES’ two children ages 10 and 12 from a previous relationship (the Children’s step-siblings), and two more children (ages 1 and 3) that the Mother and ES have had together (the Children’s half-siblings).

The Mother has taken on the surname of her new husband, ES, such that the two Children have the B-B surname while the rest of the family has the S surname. [ 3 ] The Application appears to have been precipitated by the fact that the Father has been unreliable and inconsistent in exercising his supervised parenting time with the Children, and that he has been charged with murder and arson and is in custody pending trial. [ 4 ] I have anonymized the names of the parties and the Children in these Reasons.

In doing so I have considered the best interests of the Children having regard to the test in Sherman Estate v Donovan , 2021 SCC 25 at para 38 . [ 5 ] For the reasons set out below, the Application is denied.

II. Background [6] The Application started as an application to recognize ES as guardian of the Children, coupled with the requested namechange. JTS and ES filed an affidavit describing ES’ positive and supportive role in the Children’s lives since 2015. The Childrencurrently live full-time with the Mother and ES, who were married in September 2020.

They appear to have a happy family unit withJTS, ES, the two step-siblings, the two Children, and the two half-siblings. [7] The Application for guardianship was instigated because of a concern that if something were to happen to the Mother, theywould not have a guardian that could make decisions on the Children’s behalf. [8] The Father’s history with the Mother and the Children has been problematic. The Mother’s evidence is that she escaped theFather’s domestic violence shortly after the second of the Children was born. The Father has only had supervised access for years, whichhe has not reliably exercised.

He has struggled with substance abuse and other issues. The Mother provided evidence of the inconsistencyof the Father’s supervised access, including that he would cancel without notice and that this has caused the Children stress and anxietyover the years. The Father asserts that he struggled to exercise his supervised parenting time due to its costs, and his belief that theMother has attempted to thwart his parenting. The Mother denies this.

The Father testifies that he loves his Children, that he hasexercised parenting when he could, that he wants to maintain a relationship with them, and that he wants the Children to retain aconnection to him and their Métis heritage. [9] On February 18, 2022, the Father was scheduled to have supervised parenting time, his first since November 2021. This isthe day of the murder and arson for which the Father has been charged. The Mother asserts that the police have advised her not toproceed with supervised access. The Father was arrested and taken into custody.

The Mother advises that the police contacted her afterthe Father’s arrest and advised of concerns for the Children’s safety because the police have reason to believe that the victim’s familymay retaliate against the Father’s loved ones. [10] Both applications were originally opposed by the Respondent. By the time the Application came before me, ES had beenappointed guardian and the only issue remaining was the Application to change the Children’s surname notwithstanding the Father’srefusal to consent. III.

Issue [11] The issue is whether it is in the best interest of the Children for the court to dispense with the Father’s consent to change theChildren’s surname from B-B to S. IV. Analysis [12] The Applicants are entitled to apply to change the name of the Children pursuant to

section 23 of the Vital Statistics Act, SA2007 c V-4.1 (VSA) because they are both guardians of the Children. However, pursuant to section 23(3) of the VSA they require theconsent of both parents (which they do not have) or an order under

section 69 of the VSA dispensing with the other parent’s consent. [13]

Section 69 of the VSA 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 thatperson, 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 or an application to amendthe sex on a child’s birth record, the Court of Queen’s Bench, in deciding whether to dispense with consent, shall have regard to the bestinterests of the child. [14] The Applicants’ main reasons for seeking the name change are concerns about: (1) the safety of the Children due to theFather’s murder and arson charges; (2) a stigma and lack of privacy being associated with the Father given his criminal charges andgiven they reside in a small community; (3) the Father’s lack of regular exercise of parenting creating emotional instability and damageto the Children; (4) the Children’s wishes to have the same surname as the rest of their family; (5) the Children feeling excluded or anoutsider in the family and at school; (6) some difficulties related to medical matters and activities enrolment, where it is not readilyapparent that the Mother is the Children’s mother. [15] The Father refuses to consent to the surname change because it is an important link between him and the Children as well astheir Métis heritage. [16] There are numerous reported judicial decisions under this or similar legislation across Canada.

Care must be taken with otherdecisions as they are fact specific and there may be differences between the legislation across provinces in relation to the onus and legaltest applicable in such an application. Further, the legislation within a province may change over time. [17] In Alberta, the onus is on the Applicant: Lipphardt v Chan, 2006 ABQB 511, at para 3, and 12; JEB v JS, 2020 ABQB 437 atpara 44.

The very fact that the Legislature requires consent of the parents to a proposed change of surname for children means that it isnot a mere administrative act or act of convenience, and the court should not dispense with that requirement lightly: Smalley v Hoppe,1999 ABQB 931; Herniman v Woltz, (ONSC) at para 8. The ultimate test is whether it is in the best interests of thechildren to change the name as requested by the Applicants: VSA, section 69(2). [18] In Alberta and elsewhere, there are some cases that reference a specific set of criteria to apply, referred to as the “Wintemute”

criteria based on a decision in Wintemute v O’Sullivan, , which was decided some 37 years ago.

Wintemute pointed tothese factors, taken from Davies, Family Law in Canada: (1) the welfare of the child; (2) the short and long term effects of the change insurname; (3) any embarrassment likely to be experienced by the child if its name is different than that of the parent with custody or careand control; (4) any confusion of identity which may arise for the child if his or her name is changed or is not changed; (5) the effectwhich any name change in surname may have on the relationship between the child and the parent whose name the child bore during themarriage; and (6) the effect of frequent or random changes of name.

See for example, these cases which apply the Wintemute criteria: Smalley at para 8; BDO v DKG, 2020 ABQB 514 at para 32; Pulkinen v Munson, 2013 ABQB 139 at para 39; Custance v Custance,2022 ABKB 654 at para 18; Cuthbert v Nolis, 2018 ONSC 4643 at para 120; Closner v Closner, 2021 ONSC 6114 at para 187. [19] I don’t read Wintemute or the cases referring to it as attempting to provide a required or exhaustive list of criteria or factors toconsider in determining a child’s best interests when a non-consensual name change is at issue.

A child’s best interest is inherently factspecific, and in my view must have regard to changing modern realities and social norms respecting naming practices and blendedfamilies.

Having said that, other decisions and legislation, including the best interest factors in the Divorce Act, RSC 1985 c 3 and theFamily Law Act, SA 2003, c F-4.5 (FLA), to the extent they are relevant to children’s names, can show trends or provide helpfulguidance: Lipphardt at para 14. [20] I have reviewed case authorities and the above legislation and have assessed below the key factors related to the Children’sbest interests in this case. A.

The Effect of a Surname Change on the Parent-Child Relationship [21] It is trite that, within limits, the promotion of a relationship or link between children and their parents is accepted as being inchildren’s best interests. This is reflected in various legislation in determining the best interests of children: Divorce Act, at sections16(3)(

b) and 16(6); FLA at sections 18(2)(vii) and (ix); Custance at para 34; CML v PJT, 2013 ABQB 144 at para 8. [22] The Supreme Court of Canada has recognized that the naming of a child is a significant participation in the life of a child anda significant feature of the parent-child relationship: Trociuk v British Columbia (Attorney General), 2003 SCC 34 at paras 16-17.Many courts have recognized that sharing a surname between parents and children is one of many ways to foster a relationship between aparent and child, and usually will benefit the children: Lipphardt at para 19; BDO at para 37; Re Staples, 2005 ABQB 190 at para 11;JEB v JS at para 51; Hoefling (Re), 2017 ABQB 476 at para 21; Wolfram v Gordon, 2019 SKQB 202 at para 243; Fletcher v Davis,2015 SKQB 52 at para 70. [23] The potential importance of sharing a surname as part of the parent-child relationship is reflected in the fact that it is almostalways a primary factor in contested applications to effect a change in a child’s surname.

It is also reflected in the different way courtstreat name change applications, depending on the context of the request and what is being sought. [24] For example, one common scenario involves one parent whose name is not part of the child’s surname seeking to hyphenatethe child’s name to include the applicant’s surname.

Courts frequently grant those applications on the basis that it is important to supporta strong relationship with both parents through sharing of a surname: BDO at para 38; LMD v JRS, [2010] NBJ 258 at para 35; JEB vJS, at para 55; Fletcher v Davis, at paras 70-72; Bromley v Furlong, 2012 NLCA at para 19; Wolfram v Gordon, at para 243; KD v CK,2021 SKQB 92 at paras 110-111; Rensonnet v Uttl, 2016 ABQB 95 at paras 248-252; Landa-McAuliffe v Boland, 2012 BCSC 1354 atparas 14-24; OO v LM, 2017 BCSC 1411 at paras 173-176; ANH v MKC, 2010 NBQB 120 at paras 120-124; Gallant v Lewis, (ONSC) at para 27. [25] A second common scenario, which is the one at issue in this Application, involves a parent seeking to eliminate the otherparent’s name from the existing surname, typically as a result of the first parent marrying and adopting a new surname, or to switch it tothe first parent’s name because they have custody or primary care of the child.

The trend in these cases illustrates that such applicationsto remove a parent’s name from an existing surname are rarely successful: Wintemute at para 9; Smalley at para 15; CML v PJT;Lipphardt at para 19; Re BMAE, 2001 ABQB 1043; Johnston v Cunningham, 2012 ABQB 505 at para 30; Hoefling (Re) at para 17;Re Staples, at para 12; Zho v Chen, (Ont SC); Rattai v Wyrzykowski, 2004 MBCA 155; DS v CS, 2011 MBQB 184;Pappel v Bergen, (MBQB); Giggie v Guidry, 1997 NBJ 184; PKD v AMA, 2022 BCSC 1354 at paras 147-148; KSHv SFF, 2022 BCSC 661 at para 57. [26] Where an applicant seeks to remove a parent’s name from a child’s surname, they will usually need to establish that there arebenefits to the name change that outweigh the potential damage to the parent-child relationship caused by removing the name: Hoefling(Re) at para 19; DS v CS at para 37. [27] The protection of the parent-child relationship through the sharing of a surname can become even more important where therelationship with the parent is already tenuous.

Courts look at the short-term but also the long-term effects of the change. Where aparent-child relationship is already on shaky ground, removal of the parental name may, in some cases, potentially contribute to theremoval of the parent from the child’s life, which may be difficult to repair later. Even a “symbolic” link or tie may be worth preservingso the child has better options when they get older and can make the decision for themselves: Rattai at para 14; RJH v CCH, 2007MBQB 261 at para 167; Herniman at para 12; Re BMAE at para 42; KSH v SFF, at para 54; Johnston v Cunningham at para 30.

Asstated by the Manitoba Court of Appeal in Rattai at para 14: What the mother seeks now is short-sighted. At this stage of their lives, it is in the best interests of both children that whatever frailthread of family history still exists, be maintained. It is not uncommon that a relationship with an estranged parent and a child isrekindled later in life when the process of time and maturing have had time to place life in a different context. [28] In this case, the Father’s relationship with his Children is already tenuous.

He is reasonably concerned that the removal of hisname will eliminate one of the remaining connections he has with his Children. In this case, I believe this is a real risk. While this factoris not determinative, the potential damage to the Children’s relationship with the Father is a strong factor against dispensing with hisconsent to the proposed name change.

B. The Children’s Link to their Métis Heritage [29] It does not appear to be in dispute that the Father is Indigenous and that the Children are Métis. The Father argues that hissurname is the only or main connection they have to their Métis heritage.

The Applicants downplay this argument, suggesting that it hasbeen the Mother (not the Father) that has encouraged the Children’s cultural heritage and the Applicants will continue to do so, that theChildren do not receive benefits from the Father’s First Nation, that the Father was adopted and his biological roots are unknown, thatthe Father has a different surname than his adoptive parents and does not have his own historical connection, and that the Father’s lastname (according to Ancestry.com) originates in France and is not directly connected to Métis heritage.

I do not find these argumentspersuasive. [30] The Applicants have not provided evidence to explore the potential impact on the Children’s connection to their Métis culturalheritage which might be caused by removal of the Father’s name from their surname. Children’s connections to cultural background andheritage can decrease over time as children bond with people of a different cultural background and heritage: Racine v Woods, (SCC), [1983] 2 SCR 173 at p 187. Further, in Trociuk at para 17, the Supreme Court noted that surnames can, for many,symbolize “familial bonds across generations”.

Other courts, in the context of name change disputes, have found it important to protectfamily history and connection to cultural affiliation: Rattai at para 14; PKD v AMA at para 148. The importance of cultural upbringingand heritage, including Indigenous upbringing and heritage, have been expressly recognized by both Parliament and the AlbertaLegislature, and there is no reason that I am aware of to suggest that this policy would not apply to children’s names: Divorce Act atsection 18(3)(f);

An Act respecting First Nations, Inuit and Metis Children, youth and families, SC 2019 c 24 at section 10(3); FLA atsection 18(2)(iii). [31] Whether the Children receive monetary benefits from their heritage is not relevant to whether it is worth preserving theconnection to that heritage. The importance of one’s heritage is more than any financial gain to be made from it, and I reject anyargument that says otherwise. Further, I do not accept the Applicants’ attempt to provide expert genealogical evidence by relying on aone-page printout from Ancestry.com – this is inadmissible evidence.

In any event, whether the Father’s name originated in France orotherwise, does not change the accepted reality of the Children’s Métis heritage, nor is it necessarily inconsistent with it. [32] Finally, the Applicants point to the fact that the Father was adopted and his adoptive parents do not share his surname,apparently to support the application.

If anything, the fact that the Father’s parents chose to maintain his birth surname rather than changehis name to their surname, reflects that they believed it was important for the Father to maintain his birth surname. [33] On balance, the preservation of the link to the Children’s Métis heritage and culture is a factor against dispensing with theFather’s consent to the proposed name change. C. Children’s Safety [34] A child’s physical, psychological and emotional safety is paramount in any discretionary decision involving children: DivorceAct, section 16(2); FLA section 18(2)(a); Re Staples at para 5.

It will be an unusual situation for physical safety to be a concern withrespect to a child’s name. However, in the appropriate case, it could be a primary consideration. [35] I acknowledge the Applicants’ concern based on information from the police officers of a fear that the Children may be thetarget of retribution from the murder victim’s family. The police officer did not provide an affidavit or any direct evidence.

TheApplicants’ evidence of what the police officers told them in this regard was hearsay in the context of what is effectively a finalapplication to determine the issue of the proposed name change. In those circumstances, the evidence is inadmissible hearsay unless anexception to hearsay is established: Rule 13.18. The Applicants’ have not asserted an exception to hearsay. However, in case I am wrongand the application is not a final application, I have considered the evidence pursuant to Rule 13.18(2). In that event, I give it littleweight.

The fears were vague and not particularized, and there was no factual foundation or objective evidence provided for the concernsbeyond bare assertions. [36] Further, the Applicants swore a Reply Affidavit on September 23, 2022, but did not offer material tangible evidence tosubstantiate the fears, since their original affidavit was sworn in May 2022, to support the safety concern. [37] There is some evidence from the Applicants of the Father’s historical family violence, however, it was not raised as a specificground to support the proposed name change.

Any family violence was several years ago and the parties have subsequently managedsupervised access without a name change. In those circumstances, I do not believe the evidence of historical family violence is a strongfactor supporting the proposed name change. [38] In all the circumstances, I give some weight to this factor in support of the Application. D. Father’s Failure to Exercise Parenting [39] Some of the Applicants’ evidence and argument is directed at the Father’s failure to exercise his parenting in a reliable way,and in doing so he has caused the Children stress and anxiety.

The Applicants assert that the Father’s name is a painful reminder of theFather’s abandonment, that they have deep wounds from his abandonment. They say that as a result they have trauma associated with theFather’s surname and that it is a jab in the gut when they hear it, see it, and have to write it in class. The Applicants have not providedexpert or medical evidence to support these assertions. [40] Even if I were to accept their lay opinion that the Father’s conduct caused stress and anxiety, that is primarily a parentingmatter and is not directly related to the Father’s name.

Courts have noted that the retention of the last name given a child at birth is notmade to depend on a parent paying child support or exercising parenting: CML v PJT at para 10. However, when problematic parentingcreates too large a rift between a child and parent, it may justify a name change, particularly where the child is old enough to make his or

her own choices: McInnes v Weinberger, 2005 ABQB 434 at paras 7-13. [41] In this case, there is conflicting evidence surrounding the Father’s exercising or attempting to exercise his parenting time,which goes to the heart of the Applicants’ position that the Father caused the Children harm. I cannot resolve the conflict in the evidencein this application. [42] On balance, I give only some weight to this factor. E.

Stigma of Criminal Charges and Children’s Privacy [43] The Applicants’ evidence is that the Father’s last name is not common in their community, and that they do not want theChildren to be associated as the children of a murderer. They speculate that the name can have lasting implications in a smallcommunity, and that it would not be fair to subject the Children to others’ unneeded judgment based on the Father’s actions. [44] To my knowledge, the Father has not been convicted of murder and arson. The presumption of innocence is enshrined in theCanadian Charter of Rights and Freedoms,

section 11(d), and is an important Charter value. A court exercising its judicial discretion,should do so consistent with those Charter values, including in the family law context: Young v Young, (SCC), [1993]4 SCR 3; AB v CD, 2020 BCCA 11 at para 203. In this Application, I acknowledge the evidence that the Father has been charged withmurder and arson, but I will not assume the Father’s guilt in considering whether a name change is appropriate. The Applicants arereasonably not in a position to provide evidence to prove the Father’s guilt. The question of his guilt is appropriately left for the criminalprocess.

I make no further comment at this time as to whether a conviction on his charges might change the analysis on the proposedname change. [45] I give little weight to this factor. F. The Children’s Views [46] The Applicants assert that the Children ask all the time when they can have the same surname as the rest of their family, andquestion why they have to use the Father’s name, and further indicate that they are the only ones not part of the family.

From this, theApplicants assert it is the Children’s wishes to change their surname. [47] There are numerous ways to bring evidence of the preferences of children into court proceedings: SK v DG, 2022 ABQB 425at para 168. One such method is the parties’ evidence about what the children have told them. However, hearsay information from oneparent about a child’s preferences must be considered with care: Zho at para 33. [48] In any event, as with other matters, a child’s views are not determinative to the question of a name change: Re BMAE at para39; Herniman at para 8; Zho at para 33.

In this case, the Children are quite young. Without a report or other evidence from aprofessional counsellor, medical professional, or a properly appointed independent counsel for the Children, to provide assurance that theChildren have the capacity to understand the consequences of a surname change, I accept and acknowledge the evidence of theChildren’s preferences, but do not give them substantial weight. My decision is based on the overall best interests of the Children basedon all of the evidence and considerations before me. G.

Children Having Different Names than Mother and Her Family [49] There is a line of cases, manifested in the Wintemute factors, that considers whether Children would experienceembarrassment if a name change is made or not made: see, for example, Skoglund v Dimmery, at para 47, where thecourt held that it would be difficult and embarrassing for a 5-year-old to have to explain why they have a different surname from theperson with whom the child lives. [50] A related factor is the inconvenience or difficulties associated with medical appointments, school registrations, child’sactivities and the like, when the custodial and decision-making parent has a different name than the child. [51] The importance of these factors has eroded over the years.

They must be proven with evidence not speculation, and aregenerally now viewed with skepticism and given little weight due to the changing nature of Canadian families, the departure frompaternalistic naming practices, the short-term nature of any embarrassment or difficulty, and the wide acceptance of multiple surnames inCanadian households: Smalley at para 13; Lipphardt at para 13; Giggie at para 7; JEB v JS at para 55; KSH v SFF at para 55; and ReBMAE at para 9-10. [52] I agree with the cases that give this factor little weight.

In my view, characteristics that make a child unique, including theirbiological parents’ names, should generally be recognized, not eliminated, or concealed, absent other good reasons. Here, the Childrenshare the same surname, which likely serves to strengthen their unique sibling bond. [53] In addition to the asserted sense of exclusion the Applicants say the Children feel by having a different surname, the Motheralso raises that it is not obvious that she is the Children’s Mother when it comes to medical appointments and the Children’s activities.

Inmy view, this also should be viewed with skepticism – modern Canadian society is quite used to dealing with children who havesurnames that are different than their parents. [54] Ultimately, the Mother chose to adopt her new husband’s surname, rather than her previous surname which continues to existin the Children’ hyphenated surname. That was obviously her choice, which is respected. However, this likely contributed to anydifficulties with medical appointments and activities. It also contributed to why the Children do not share a name with anyone else intheir current household.

If the concerns about the Children’s exclusion from the rest of the members of the household, or other

difficulties, are a serious concern, I note that these concerns could possibly be mitigated if the Mother chose to hyphenate her name to include her birth surname. [ 55 ] On balance, these are only minor factors supporting the Application. V. Conclusion [ 56 ] On balance, and considering all of the factors, in my view the factors that support the Application do not outweigh the factors against the Application. Accordingly, in my view it is not in the best interests of the Children to change their names to remove the Father’s name from their surname at this time.

Therefore, I dismiss the request to dispense with the Father’s consent. [ 57 ] If the parties cannot agree on costs within 30 days of this decision, they may make written submissions to me to a maximum of 3 pages (not including authorities). Heard on the 11 th day of October, 2022. Dated at the City of Calgary, Alberta this 28 th day of November, 2022. M.A. Marion J.C.K.B.A. Appearances: Brynn Doctor for the Applicants Rabie Ahmed for the Respondent