ASHRAF NOURELDIN PETITIONER - v. -, 2023 SKKB 166

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 166 Date: 2023 08 09 Docket: DIV-RG- 00569-2021 Judicial Centre : Regina, Family Law Division BETWEEN: ASHRAF NOURELDIN PETITIONER - and - AMY ANN MOHR RESPONDENT Counsel: James N. Korpan, K.C. for the petitioner Christine A. Hansen-Chad for the respondent FIAT BROWN J. AUGUST 9, 2023 Introduction [ 1 ] The parties have, to their credit and with the able assistance of counsel, been able to agree on virtually all aspects of the dispute following the breakdown of their relationship.

In that regard, they are sharing parenting and decision making of their daughter, Farah, born [...], 2018, equally. The single remaining issue that they are unable to forge agreement on is with respect to Farah’s last name. [ 2 ] Amy therefore applies for an order that Farah’s name be changed to a hyphenated name which includes her surname of Mohr. Farah’s last name would, on the scenario put forward by Amy, become either Noureldin-Mohr or Mohr-Noureldin.

The application is for an order pursuant to s. 9 of The Change of Name Act, 1995 , SS 1995, c C-6.1 dispensing with Ashraf’s [Ash] consent as he is clearly and staunchly opposed to the proposed change of name. Issue 1. Should Farah’s last name be changed to include both parents’ last names despite the opposition of her father? Discussion

[3] Sections 8 and 9 of The Change of Name Act, 1995 provide as follows: Consents: change of name by legal custodian 8(1) Where a person who meets the requirements of clauses 5(2)(a), (

b) and (

c) is the legal custodian of a child, that person may file anapplication for a change of name for the child.

(2) An application pursuant to subsection (1) must be accompanied: (

a) by the written consent of every other person who is a legal custodian of the child mentioned in subsection (1); and (

b) if the child is 14 years of age or older, by the written consent of that child. Dispensing with consent 9 Where an applicant is unable to obtain a consent required pursuant to

section 7 or 8, the applicant may apply to a judge of the Court ofQueen’s Bench for an order dispensing with the consent, and the judge may grant or refuse to grant the order. [4] These provisions have been previously interpreted. In Vanderlinde v Bohn, 2003 SKQB 503, 242 Sask R 264[Vanderlinde], it was concluded that a “best interests of the child” analysis was appropriate to utilize for such a situation. What theapplicant must show is that there is a reasonable basis for changing a registered surname of a child.

In Vanderlinde the facts were that thechild had been known in the community by the proposed hyphenated surname and the official change would eliminate confusion,consequential inquiries and the explanation of sensitive events. Thus, it was in the child’s best interests that there be a change of namenotwithstanding the objection of the non-consenting parent. [5] In Tarry v Rincker, 2013 SKCA 98, 423 Sask R 137 [Tarry], the Saskatchewan Court of Appeal consideredthis type of application as well.

The court confirmed that the court’s task is to determine whether dispensing with another legalcustodian’s consent to a change of name is in the best interests of the child involved. [6] With respect to when a child’s last name is properly inclusive of both parents’ surnames, the state of the law isnoted in Fletcher v Davis, 2015 SKQB 52, 469 Sask R 192 [Fletcher], Wolfram v Gordon, 2019 SKQB 202 [Wolfram] and K.D. v C.K,2021 SKQB 92 [K.D.]. The matter may be addressed via s. 9 of The Change of Name Act, 1995 such that a legal custodian is entitled toinitiate a request to change the name of their child.

This can occur either by consent of both parents or through an order made pursuant toThe Change of Name Act, 1995. As Ash is not consenting, the issue is whether that consent ought to be ordered dispensed with. This thenengages the best interests of the child. [7] It is not in dispute here that Ash and Amy agreed to Farah’s name when registering her live birth together.

Adifferent version of just how the name “Farah Irene Noureldin” was selected exists depending on who is providing the narrative.However, setting aside the contradictions that exist as between the parties’ differing versions, a process unfolded wherein compromiseswere made by both parties to arrive at that first, middle and last name for Farah. [8] The process whereby the name was ultimately chosen, however, is not to be the focal point of an inquiry suchas this unless that process can be shown to be connected to the best interests of Farah regarding the prospect of adding “Mohr” to hersurname. [9] Similarly, the facts surrounding how and why Mohr has once again become Amy’s surname must be linked toFarah’s best interests to be of assistance in this inquiry.

While it is true that Amy did not desire to revert to Mohr independently of Ash’sexpressed desires for her to no longer use his surname of “Noureldin” once they separated, the connection to Farah’s best interests is notreadily apparent when considering that development. While the problem may have been averted but for Ash’s insistence regardingAmy’s surname, that is background information as opposed to a measure of Farah’s best interests.

As such, neither those events nor thenegotiation processes surrounding naming Farah provides assistance in this instance regarding whether it is in Farah’s best interests tohave Mohr added to her surname now. [10] It is clear that both parents have been very involved in Farah’s life. Ash opposes Farah’s name being changed toinclude Amy’s surname based primarily on his cultural beliefs and the significance those beliefs hold for the naming of children. Again,while these beliefs are important to Ash, given Farah’s age, they are not something that speaks to the best interests of Farah.

If she wereconsiderably older and had chosen to adhere to those beliefs as well, that would of course be different. [11] Nor is this a situation where Amy seeks to replace Ash in Farah’s life with a new partner and reinforce thisreplacement through the changing of the name of her children to a new married name. That is what occurred in Bachinsky v Bachinsky(1985), (MB KB), 47 RFL (2d) 222 (Man KB) [Bachinsky]. The background here is that subsequent to the urging ofAsh, Amy has gone back to her surname of Mohr.

She has consistently agreed to foster the relationship between Ash and Farah, mostrecently through consenting to a shared parenting order. Her motives are in no way similar to nor comparable with those of the applicantin Bachinsky. This was of significance in K.D. where Justice Richmond noted: [111] This is not a situation where K.D. is trying to change the children’s names to that of a new spouse. She wants the children to haveher name. The children are closely connected to their mother and C.K. has not established a good reason as to why the children shouldnot have their mother’s name as well as his.

C.K. shall be bound by the terms of his earlier agreement and shall execute the consent tochange the children’s names within 15 days, failing which, C.K.’s consent will be dispensed with and K.D. may proceed without hisconsent to change the children’s names to [surname K-D]. [12] Of note here as well is para. 9 of Tarry where our Court of Appeal indicated that considering how a change ofname would negatively impact a child is part of the inquiry:

[9] More importantly, although there was undisputed evidence to the effect that the father had always opposed a change of Farah’s surname, there was simply no evidence that the proposed change would or could detrimentally affect the children themselves. ... [ 13 ] It is true that Tarry is different than the present situation in that the hyphenated name intended to be made official in Tarry had been used on an unofficial basis for a number of years.

Therefore, in keeping with the situation presented in Vanderlinde , this provided a ready basis in Tarry for the discretion exercised by the chambers judge to dispense with the consent to the name change by the objecting parent. It was a straightforward matter to find the child’s best interests in such a scenario. [ 14 ] In Ermel v Munroe , 2014 SKQB 168 , 447 Sask R 271 , Justice Goebel found it was not appropriate to dispense with the consent of the objecting parent as both parents had previously agreed on the child’s surname at the time of birth.

The matter was raised for the first time as part of a court application rather than after attempts were made to garner consent from the other parent. Ultimately there was insufficient evidence of the way the change would benefit the child, therefore the matter was dismissed without prejudice to a determination subsequently made upon provision of additional evidence. [ 15 ] The best interests of the child must be the focus of the inquiry. The impact of a hyphenated name which includes both parents’ surnames versus a non-hyphenated name containing only one must be viewed from the child’s perspective.

Each parent will of course have their own thoughts and feelings, however, unless those can be shown to relate to the child’s interests, they are not particularly significant or persuasive. [ 16 ] As noted in Fletcher and Wolfram , in many decisions post-dating 2003, Trociuk v British Columbia (Attorney General) , 2003 SCC 34 , [2003] 1 SCR 835 [ Trociuk ] provides helpful insights into the issue of the best interests of a child and their last name.

Trociuk involved a situation where the parents of the child had never married and the mother registered the children in her name indicating that the father was “unknown”. While Trociuk also involved a challenge pursuant to the Canadian Charter of Rights and Freedoms , the surname findings are of assistance here: 17. 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 [ T.(D.W.) v British Columbia (Attorney General , 2001 BCCA 368 , 200 DLR (4 th ) 685 ], naming is often the occasion for celebration and the surname itself symbolizes, for many, familial bonds across generations (paras. 138-39). 18. The significance of choosing a surname is particularly evident if viewed in light of the rationales for reforms which extended to mothers the ability to transmit their surnames to their children.

As Professor Castelli wrote on this subject, in a comment on the (Quebec) Civil Code Revision Office’s Report on the Name and Physical Identity of Human Persons: [TRANSLATION] ... one of the most serious and most fundamental inequalities is indeed for women not to be able to pass on their surnames; for that matter, this is how that impossibility has always been viewed: a sign of the inferiority of women and their incapacity to perpetuate a line by filiation; was it not regarded ... as a misfortune not to have a son, precisely because the “line”, the “name”, died out with girls, who were unable to perpetuate them.

People in our time have admittedly become relatively indifferent to those sorts of considerations; nevertheless, transmission of the surname remains the symbol of filiation, and it is not normal to deny to women any possibility of seeing their surnames passed on to their children or to some of them. (M. D. Castelli, “Rapport de l’O.R.C.C. sur le nom et l’identité physique de la personne humaine” (1976), 17 C. de D. 373, at p. 374) Although the activity of naming may not hold the same significance for all, it is clearly important to many in our society.

A father who is arbitrarily excluded from this activity would reasonably perceive that a significant interest has been affected. 19. The conclusion flowing from the above is that a father’s ability to include his particulars on a child’s birth registration and to contribute to the process of determining the child’s surname can reasonably be perceived to be modes of meaningful participation in a child’s life. As a further consequence, arbitrary exclusion from such means of participation negatively affects an interest that is significant to a father. ... . . . 31.

Since the above discussion has revealed that including his particulars on a child’s birth registration and participating in choosing the surname are means by which a father participates in his child’s life, arbitrarily leaving him out of these activities is to exclude him from meaningful involvement.

Such exclusion cannot be presumed to be in the best interests of the child, and therefore is not an ameliorative purpose that would justify excluding a father from a mode of meaningful participation in his children’s lives. [ 17 ] While Trociuk is admittedly from the perspective of what a parent might lose if they are not part of the naming process at the time of birth through completion of the registration of live birth, it also includes what might be lost by the child if that child’s surname is not inclusive of their parents’ surname.

Justice French in D.(L.M.) v S.(J.R.) , 2010 NBQB 188 , 365 NBR (2d) 104 , addresses this at para. 35: 35. ... The Supreme Court of Canada in Trociuk and other reported decisions referred to above, recognize the significance of a child’s surname and its importance to the connection between a child and the child’s parents. These authorities make it clear that including the name of both parents is consistent with a child’s best interests. This is not a random change of name. Nor is it a request without a purpose.

In the absence of any evidence to suggest that CHS’s existing surname - the name of only one parent - is in his best interest or otherwise preferable in the circumstances, a surname that includes the names of both parents cannot be rejected simply on the basis that the status quo should prevail. Not only is there no reason why the name should not change but also, in the circumstances of CHS, given his young age (he was still three when the initial application was filed) and close relationship with both parents, he will benefit from a name that reflects his connection to two separate families.

[ 18 ] Justice French’s reasoning was subsequently endorsed by the Newfoundland and Labrador Court of Appeal in Bromley v Furlong , 2012 NLCA 56 , 326 Nfld & PEIR 170 : [19] These principles and conclusion apply equally in the case now before this Court. The child is young and a close relationship with both families is being encouraged through the joint custody arrangement. Adding the mother’s surname will serve to reduce the possibility of confusion in the community. Animosity between the parents, which is to be strongly discouraged in the interests of the child, or the preference of Mr.

Furlong that the child have his name are not factors that, in the circumstances, should be paramount considerations in determining the best interests of the child. [ 19 ] Also as noted in Fletcher , Wolfram , and K . D. , participation through sharing a name with one’s child is important and meaningful in current Canadian society. It is important and meaningful not only to the parents but, most importantly in this context, to the child. It confirms the relationship to one’s parents without the need for elaborate explanation and serves to reduce potential confusion in the community.

It signifies the ties a child has to his or her parents, which can be important when the family is no longer one combined unit. There are few things more highly valued than those ties and any encouragement in that regard is a positive. [ 20 ] Sections 20 and 27 of The Vital Statistics Act, 2009 , SS 2009, c V-7.21 and s. 7 of The Vital Statistics Regulations, 2010 , RRS c V-7.21 Reg 1 , contemplate the involvement of both parents of a child having input into whether one surname will be selected or a hyphenated combination of their surnames will be given to their child.

When there is conflict amongst the parents in relation to the surname to be given a hyphenated surname consisting of both surnames, arranged in alphabetical order, will be given. Here, as was the case in Wolfram and K.D. , the disagreement comes much later in time than as contemplated in those statutory provisions. Here it comes after the parties both signed the registration of live birth, as occurred in Wolfram as well.

The question as to whether their initial agreement ought to be determinative of the outcome here has already been addressed; that is not something that speaks directly to the best interests of Farah. It is but background information. [ 21 ] It is worth reiterating that if the legislation were in play, neither parent would be given the exclusive authority to choose the name.

The statute governs at that point in time and the name is required to be a hyphenation of the two surnames of the parents when they cannot agree. [ 22 ] As set out in Wolfram , agreement at one point in time in this context cannot mean agreement forever. Families break up. It is a reality of our age. An agreement of this sort is not, and should not be, binding in perpetuity. The fact that there is disagreement now does not change the fundamental nature of this decision.

It simply moves it into this forum rather than having it determined by virtue of the statutory provisions applied immediately after the birth of a child. The best interests of the child gains prominence at this subsequent date rather than relying on the default of hyphenation due to a lack of parental consensus. [ 23 ] Ash argues that leaving Farah’s surname as Noureldin alone is indicated given the significance of the compromise he already made regarding the middle name and to a lesser extent the first name.

As noted, this is something specific to Ash and, without minimizing its impact on him, is not something that speaks to the best interests of Farah which is to be address individually. [ 24 ] There is little evidence that inclusion of “Mohr” in Farah’s surname would detrimentally affect her as opposed to detrimentally affecting Ash. Farah is still young and, if a name change is to occur, it is a more appropriate time to do so than in a number of years. While Ash proposes to wait until Farah can consent, I do not share that approach.

It is much more appropriate to consider the change now rather than waiting for years to come. [ 25 ] Amy is recognized as Farah’s mother.

As noted elsewhere, a surname that includes the names of both parents cannot be rejected simply on the basis that the status quo should prevail particularly when Farah has a close relationship with both parents that has all the incidents of continuing to be close going forward. [ 26 ] In the circumstances that exist here which include: the recognized authorities respecting the importance of name to both parent and child; the demonstrated intention by both parents to be involved and present for Farah from prior to her birth and continuing through to the present; Amy’s demonstrated intention and desire to have her name reflected and to have shared access to Farah so as to foster the relationship; the age of Farah; the importance to Farah to be seen to be connected to the Mohr lineage; the benefits to Farah by not having to explain her last name in connection with her mother; I find that it has been established that it is appropriate and in Farah’s best interests that her name include “Mohr” as a hyphenated last name. [ 27 ] It is therefore ordered that the consent of Ash is dispensed with pursuant to s. 9 of The Change of Name Act, 1995 .

The matter of the order of hyphenation is that Farah’s surname will be Mohr-Noureldin. [ 28 ] In these circumstances, the best interests of Farah are to have a hyphenated last name so as to show connection to both her father and her mother who both clearly care for her very much. Farah will benefit from having the ready recognition of both parents’ names as part of her own. She has been inquiring in this regard and it is responsive to provide this form of answer.

Costs [ 29 ] In the circumstances, given Amy’s success, but recognizing the strongly held feelings on both sides, deriving as they do from legitimately held perspectives, an order of costs in the amount of $500 and not a more significant amount is appropriate. These are to be paid by Ash to Amy forthwith. J. D.J. BROWN