Docket: CACV2330 Rick Tarry Appellant - v. -, 2013 SKCA 98

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 98 Date: 2013-09-12 Between: Docket: CACV2330 Rick Tarry Appellant - and - Stephanie Rincker Respondent Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: W. Timothy Stodalka, for the appellant Drew R. Filyk, for the respondent Appeal: From: D.I.V. No. 499 of 2011, J.C. of Regina Heard: September 12, 2013 Disposition: Appeal Dismissed Written Reasons: September 16, 2013

By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Caldwell J.A. [1] The father appealed from the fiat of a Queen’s Bench chambers judge which had dispensed with the father’s consent to themother’s application to change the surname of their children from “Tarry” to “Rincker-Tarry”. While the father says the chambers judgecommitted a number of errors of law, we found no reversible error on the part of the chambers judge. We dismissed the appeal orally forthe reasons substantively set out below. [2] The background to this matter is brief.

The parties were married and had two children. They named their children such that thechildren shared the middle name “Rincker” and the surname “Tarry”. The parents later separated and the mother filed for divorce. Bothparents sought joint custody of their children. A Queen’s Bench chambers judge awarded them joint custody on an interim basis. Themother now intends to legally change the children’s surname from “Tarry” to “Rincker-Tarry” pursuant to s. 8 of The Change of NameAct, 1995, S.S. 1995, c. C-6.1.

As the father has consistently objected to this, the mother sought an order to dispense with his consent tothe name change under s. 9 of that Act. The latter

section reads: 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 theCourt of Queen’s Bench for an order dispensing with the consent, and the judge may grant or refuse to grant the order. [3] The matter proceeded before the chambers judge by way of affidavit evidence alone. The mother adduced evidence that thechildren had been known by the surname “Rincker Tarry” (without a hyphen) in their school and extracurricular activities for a numberof years. In his evidence, the father disputed the date that the children had begun using “Rincker Tarry” as a surname and established thathe had always objected to that surname.

In the result, the chambers judge granted the mother’s application, without written reasons. [4] The father says the chambers judge erred in granting the order dispensing with the father’s consent because the chambers judge(1) found he had the jurisdiction to make a final order where there was conflicting affidavit evidence, (2) made an order in the absence ofa final order with respect to the custody of the children, (3) failed to enforce the parents’ decision at the birth of their children to use“Rincker” as part of the children’s middle names, rather than as part of their surname, and (4) made a decision which is not in thechildren’s best interest.

In the end, we found no merit to any of these avenues of appeal. [5] Under the first ground, there is simply no question that the chambers judge had the requisite jurisdiction to entertain the mother’sapplication under s. 9 of The Change of Name Act, 1995. Moreover, even though there were statements in the affidavits of each of theparents which were in direct contradiction, the conflicts in the evidence were not such that a chambers judge could not resolve themwithout resort to viva voce evidence or cross-examination.

For example, generally, a bare statement of fact may readily fall to a contrarystatement of fact which is supported by corroborating evidence. Simply put, the appellant father has not displaced the presupposition thatthe chambers judge, who had affidavit evidence alone before him, is to be “presupposed to have made reasonable findings of fact, apresupposition that places the burden of persuasion on the appellant” (see: Valley Beef Co-operative Ltd. v.

Farm Credit Corp., 2002 SKCA 100, 218 D.L.R. (4th) 86). [6] Under the second ground, we noted that an individual who seeks to change the name of a minor child under The Change of NameAct, 1995 must hold the status of “legal custodian”. Here, each parent holds that status by reason of the interim order of joint custody. Inthis limited respect, the circumstance is no different than if the parents were still married and living together, or had entered into aseparation agreement entitling them to joint custody, or had obtained a final order of joint custody from a court.

The interim nature of theorder is immaterial; the parents are each a “legal custodian” under it and each thereby entitled to bring an application before a chambersjudge under s. 9 of The Change of Name Act, 1995. [7] As to the third ground of appeal, the father provided no jurisprudential or legislative support for the proposition that a court maynot displace a naming-bargain struck by parents at the time of a child’s birth.

In fact, such a proposition would seem to run counter to theinquiry required of a chambers judge in the circumstances, which is to determine whether dispensing with another legal custodian’sconsent to a change of name is in the best interests of the children involved (see: Vanderlinde v. Bohn, 2003 SKQB 503, [2004] 5W.W.R. 398, at para. 10). [8] The final ground of appeal directly addresses the determining factor in the mother’s application, i.e., whether dispensing with thefather’s consent to a change of surname is in the best interests of the children.

While we agreed that it would have been preferable if thechambers judge had provided written reasons identifying why he found that dispensing with the father’s consent was in the best interestsof the children, written reasons were not strictly necessary in this case. The court’s comments in Bachinsky v. Bachninsky (1985), (MB KB), 34 Man.

R. (2d) 222 (Q.B.), at para. 7, are directly on point: This is not a situation where a mother seeks to replace the father in the children’s lives with a new husband and to reinforce thisby changing the name of her children to her new married name. [The mother] has no such wish to this case and apparently intends tocontinue to foster the relationship between the father and his children. I think that there is a good deal to be said for the continuity of afamily name, but I see no reason to prefer the continuity of one family name over that of another. Since the mother has chosen to use her

own family name, it seems to me consistent with the children’s best interest that they should be permitted to do so too. And, in circumstances similar to those at hand, Klebuc J. (as he then was) in Vanderlinde v.

Bohn identified a few of the general interests of children involved in these types of change of name applications: [13] The applicant has discharged the burden of establishing a reasonable basis for changing [the child’s] registered surname, mainly that [the child] has been known in the community where he primarily lives as “Timmerman-Bohn” and the name change would eliminate confusion and consequential enquiries and explanations of sensitive events.

In my view, there are advantages to having a child’s registered and de facto surname the same as school records and other applications that his parents may have to make from time to time. In our opinion, the chambers judge’s decision takes into account the general interests of a child reflected in these statements. [ 9 ] More importantly, although there was undisputed evidence to the effect that the father had always opposed a change of the children’s surname, there was simply no evidence that the proposed change would or could detrimentally affect the children themselves.

On the other hand, the evidence clearly supported a conclusion that the children have been using the surname “Rincker Tarry” (without a hyphen) for a number of years. While this seems to have resulted from unilateral actions of the mother taken in the face of the father’s clear objection to it, it is, nevertheless, the reality in which the children live and have lived for some time.

As such, in our opinion, it was open to the chambers judge to find, on the basis of the affidavit evidence adduced before him, that a reasonable basis existed for formally changing the children’s surname to “Rincker-Tarry” (with a hyphen) and, likewise, for concluding that dispensing with the father’s consent to that change would be in the children’s best interest. This is not a finding with which we would or could interfere given the evidence and the discretion vested in the chambers judge in this matter. [ 10 ] We therefore dismissed the appeal with costs to the respondent mother in the usual manner.