16 September 2012

Supreme Court Releases Decision on the Naming of Children

On Friday, the Supreme Court released its decision in Landa-McAuliffe v. Boland which addresses, among other things, the factors the court should take into account when being asked to name a child. The factual background behind this aspect of the case is neatly summarized by the court itself:
[14] Briefly, Ms. Boland changed [the child's] name from “____ ____ ____ Landa” to “____ ____ ____ Boland Landa” in order to include her own surname. She appears to have sought this change under s. 4 of the Name Act, R.S.B.C. 1996, c. 328. That section normally requires consent, although there is provision to waive consent under section 4(6) due to exceptional circumstances. 
[15] Mr. Landa wants a hyphenated surname “Landa-Boland” with his name first. Ms. Boland wants the surname “Boland-Landa” with her name first. Ms. Boland is the primary caregiver of the child.
Yes, people really do go to court with problems like this.

In analyzing the father's request, the court firstly concludes that it has parens patriae jurisdiction to make decisions about the naming of children. Parens patriae means "parent of the country" and refers to the supreme court's inherent jurisdiction to make decisions respecting people under a legal disability, although the phrase is most commonly used in reference to children.

Next, the court references the considerations set out in a 1985 case from Alberta, Wintemute v. O’Sullivan, to be taken into account when the court is asked to make decisions about naming children:
  1. the welfare of the child;
  2. the short and long term effects of a change in the child’s surname;
  3. any embarrassment the child might suffer if the surname is different from that of the custodial parent;
  4. the potential for confusion of identity;
  5. the effect of change of name on the child; and,
  6. the effect of frequent or random changes of name.
The court then cites a 2010 decision from New Brunswick, L.M.D. v. J.R.S., which addressed the issue of hyphenated surnames:
[35] ... 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 [the child'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 [the child], 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.
Finally, the court takes some guidance from s. 4.1 of the Vital Statistics Act, the provincial law that deals with, among other things, the registration and naming of newborn children. Section 4.1 deals with declarations of parentage, and subsection (2) provides that when the court is also making an order about the child's name, the court must choose either:
  1. the surname of either parent; or,
  2. a surname consisting of both parents' surnames hyphenated or combined in alphabetical order.
The court then, quite sensibly, concludes that the child should have the hyphenated surname Boland-Landa, for these reasons:
[19] I do not consider there to be any factors, singly or collectively, preponderantly favouring that either parents name go first in the present case. ... 
[21] ... the parties seem to be in agreement, a hyphenated last name would promote the child and his collaterals indentifying with both parents. 
[22] In choosing the order of the last names here as “Boland-Landa” on the basis of alphabetization, the decision would be consistent with provincial legislation and does not favour either parent. It is a neutral choice. 
[23] The name also has the advantage of being least disruptive to the child, as it is essentially the same name that the child has borne for the past several years. In my opinion the order of the last names alphabetically hyphenated promotes [the child's] best interests.
For those of you who are curious, the general rules for the naming of children by parents are set out at s. 4 of the Vital Statistics Act:
  1. if only one parent registers the birth, the child's surname is the name chosen by that parent, which could be any name;
  2. if two parents register the birth, the surname is whatever name they agree on;
  3. if the parents cannot agree on the name, the surname must be either the parents' surname if they have the same surname, or, if they have different surnames, the parents' surnames either combined or hyphenated in alphabetical order; and,
  4. a hyphenated surname must not consist of more than two names, even if one of the parents has a hyphenated surname.
The chief executive office of the Vital Statistics Agency retains discretion about the registration of names under s. 9 of the act, and may refuse to register a name if the name that a parent wishes to give to a child:
  1. might cause mistake or confusion,
  2. might cause embarrassment to the child;
  3. is sought for an improper purpose; or,
  4. "is, on any other ground, objectionable."
That last factor is pretty broad. I'm not sure that Harper Seven, Blue Ivy Carter, Zuma Nesta Rock, Dweezil or Moon Unit would have made it through in British Columbia.

2 comments:

  1. I have a male client who has gone into a form of what we used to call the "witness protection" program. He has joint custody and guardianship under the old Act, as well as primary residency. A new name is required because the mother of the three children involved started using drugs again and was talking about the cases my client had been involved in. My question is: does the provincial court have any legislative jurisdiction to order a name change?

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    1. Under s. 5 of the Name Act, the Supreme Court can order a change of name upon divorce or declaring a marriage to be a nullity. The only other way to change a name is through Vital Stats following the paper process required under s. 7, with no apparent way seek a court order for a change except if the director of Vital Stats refuses to register the name change. Unless there is another law that provides for a change of name under the circumstances you describe, I am at a loss as to what you can do. The Provincial Court appears to have no jurisdiction in matters such as this.

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