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.

Trio Tie the Knot in Brazil

CNN reports that a public notary in Brazil has "set off a firestorm" by granting a civil union registration to a trio composed of one man and two women. According to the article, the three live together and love one another like persons in any other cohabiting relationship, and granting the registration will give the trio the legal benefits of marriage and recognition as a family unit.

This raises of course, a question that has been waiting to be raised in British Columbia for some time now. The Family Relations Act defines "spouse" as including married spouses and persons for have "lived with another person in a marriage-like relationship for a period of at least 2 years." Nothing in this definition says that you can't be living with more than one person in a marriage-like relationship, although I think you would have to read the definition as establishing separate spousal relationships among the parties to the relationship. In other words, A would be in a spousal relationship with B while simultaneously being a spousal relationship with C, and B and C would have a spousal relationship of their own. The definition of spouse in the Family Law Act also allows for this eventuality.

The point, of course, is that being in a spousal relationship provides certain legal entitlements that arise on the breakdown of that relationship. Under the Family Relations Act these involve spousal support and obligations in respect of stepchildren. Under the Family Law Act, unmarried spouses will also be entitled to share in family property.

My thanks to my friend and colleague Agnes Huang for sharing the CNN article with me.

Acroynms and Abbreviations Explained

Here's a brief guide to some common legal acronyms and abbreviations used in family law matters.

A.C.J.: short for "Associate Chief Justice" in the superior courts or "Associate Chief Judge" in the Provincial Court

A.G.: the Attorney General

A.N.: Administrative Notice, a procedural advisory to be read with the Supreme Court Family Rules

B.C.C.A.: the British Columbia Court of Appeal

B.C.P.C.: the British Columbia Provincial Court

B.C.S.C.: the British Columbia Supreme Court

c.: short for "chapter"

C.F.C.S.A.: the Child, Family and Community Services Act

C.J.: short for "Chief Justice" in the superior courts or "Chief Judge" in the Provincial Court

C.R.A.: the Canada Revenue Agency

C.S.G.: the Child Support Guidelines, also referred to as "the Guidelines"

D.A.: the Divorce Act

de minimus: short for "de minimus non curat lex," a Latin phrase meaning that the law does not concern itself with trifles

df.: short for "defendant," or "respondent" under the new rules; also represented as Δ

et al.: short for "et alii" (masculine) or "et alia" (feminine), a Latin phrase meaning "and others"

F.M.E.P.: the Family Maintenance Enforcement Program, the provincial program that enforces child support and spousal support obligations

F.M.P.: the Family Maintenance Program, the provincial program that obtains child support and spousal support orders on behalf of persons receiving social assistance

F.P.D.: Family Practice Direction, a procedural advisory to be read with the Supreme Court Family Rules

F.R.A.: the Family Relations Act

Hon.: short for "Honourable"

J.: short for "Justice," JJ. is the plural form and means "Justices"

L.O.L.: Lawyer on Ledge

M.A.G.: the Ministry of the Attorney General

M.C.F.D.: the Ministry for Children and Family Development

O.I.C.: Order in Council

p.: short for "page," pp. is the plural form and means "pages"

para.: short for "paragraph," paras. is the plural form and means "paragraphs;" also represented as ¶ and ¶¶

P.C.F.R.: the Provincial Court (Family) Rules

P.D.: civil Practice Direction, a procedural advisory sometimes to be read with the Supreme Court Family Rules

pl.: short for "plaintiff," or "claimant" under the new rules; also represented as π

Q.C.: Queen's Counsel

reg.: short for "regulation"

R.S.B.C.: the Revised Statutes of British Columbia, refers to a consolidated collection of the current provincial laws

R.S.C.: the Revised Statutes of Canada, refers to a consolidated collection of the current federal laws

s.: short for "section," ss. is the plural form and means "sections" (s-s. means "subsection"); also represented as § and §§

S.B.C.: Statute of British Columbia

S.C.: Statute of Canada

S.C.C.: the Supreme Court of Canada

S.C.F.R.: the Supreme Court Family Rules

S.S.A.G.: the Spousal Support Advisory Guidelines, also referred to as "the Advisory Guidelines"

Supp.: short for "supplement"

v.: short for "versus"

Here's how you read references to legislation:

Family Relations Act, R.S.B.C. 1996, c. 128, s. 35(2)

The law is the Family Relations Act, which is chapter 128 of the 1996 consolidated Revised Statutes of British Columbia, and the part of the law specifically referred to is subsection 2 of section 35. Here's another example:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1, 16 and 17

The law is the Divorce Act, which is found in the second supplement to chapter 3 of the 1985 consolidated Revised Statutes of Canada, and the sections referred to are section 15.1, section 16 and section 17. This next example is too recent to belong to a Revised Statutes consolidation:

Civil Marriage Act, S.C. 2005, c. 33

The law is the Civil Marriage Act, which is chapter 33 of the federal laws passed in 2005.

Here's how you read references to newer court decisions:

Smith v. Jones, 2011 BCSC 345

This case is the case of Smith, the claimant, versus Jones, the respondent, and is the 345th decision of the BC Supreme Court released in 2011.

Plain-language definitions for several hundred common legal words and phrases are available in my website. If there any acronyms and abbreviations you'd like me to explain, please say so in a comment to this post.