D.W.T. v. British Columbia (Attorney General) et al., 2001 BCCA 368

• Judge: Southin, Prowse and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 15, 2001
• Jurisdiction: British Columbia
• Citations: 2001 BCCA 368;(2001), 152 B.C.A.C. 243 (CA)

D.W.T. v. B.C. (A.G.) (2001), 152 B.C.A.C. 243 (CA);

    250 W.A.C. 243

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. JL.002

D.W.T. (petitioner/appellant) v. The Attorney General of British Columbia and The Director of Vital Statistics and R.E. (respondents/respondents)

(CA025972; 2001 BCCA 368)

Indexed As: D.W.T. v. British Columbia (Attorney General) et al.

British Columbia Court of Appeal

Southin, Prowse and Newbury, JJ.A.

May 23, 2001.

Summary:

D.W.T. and R.A.E. were the unmarried parents of triplets born in 1996. When the mother filled out the birth registration, she indicated "The father is unacknowledged by the mother". The father sought an order of mandamus or, alternatively, the exercise of the court's parens patriae jurisdiction, to compel the Director of Vital Statistics to include information about the father on birth registration forms and to change the sur­names of the children to reflect that inclu­sion. The father also claimed that ss. 3(1) and 3(6) of the Vital Statistics Act violated s. 15 of the Charter because they gave female parents the discretion to refuse to acknowledge male parents on birth registra­tion forms. The mother agreed to have the birth register amended by adding the father's particulars. However, she did not agree to the father's request that the children bear the hyphenated surname E-T.

The British Columbia Supreme Court, in a decision reported in 12 B.C.T.C. 148, con­sidered the provisions of the Act and held that mandamus was unavailable. The court also declined to exercise its parens patriae jurisdiction to direct the use of hyphenated surnames. With respect to the Charter argu­ment, the court held that if it made a finding of discrimination, it would find that ss. 3(1) and 3(6) of the Act were saved by s. 1 of the Charter. The father appealed. Before the court was an application for the appoint­ment of an amicus curiae to represent the interests of the children.

The British Columbia Court of Appeal, per Lambert, J.A., in a decision reported in 131 B.C.A.C. 5; 214 W.A.C. 5, adjourned the application to the full division of the court hearing the appeal. Lambert, J.A., ordered that the mother be made a party to the pro­ceedings.

The British Columbia Court of Appeal, Prowse, J.A., dissenting in part, in the fol­lowing decision, dismissed the father's appeal.

Civil Rights - Topic 5648.1

Equality and protection of the law - Par­ticular cases - Vital statistics legislation (incl. birth registration provisions) - The Vital Statistics Act, ss. 3(1), 3(6) and 4(1)(a), provided that the choice of whether a father's name was on a birth certificate was wholly the mother's - She was under no obligation to acknowledge paternity or give her child the father's surname - The British Columbia Court of Appeal held that these sections were con­stitutional - Southin, J.A., found no dis­crimination against unwed fathers in breach of s. 15 of the Charter - Newbury, J.A., found a breach of s. 15, but ruled that the provisions were justified under s. 1 - The Legislature left no "gap" which the court, in the exercise of its parens patriae jurisdiction, could fill - See paragraphs 65 to 89, 108 to 123, 171 to 187.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 5648.1 ].

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See Civil Rights - Topic 5648.1 ].

Infants - Topic 822

Parents of - Birth registration - Rights of parents (incl. unmarried parents) - [See Civil Rights - Topic 5648.1 ].

Infants - Topic 823

Parents of - Birth registration - Acknowl­edgement of father - [See Civil Rights - Topic 5648.1 ].

Names - Topic 9

Names of children of unmarried parents - Unmarried parents had triplets - On the birth registration, the mother indicated "The father is unacknowledged by the mother" - The father sought mandamus to compel the Director of Vital Statistics to include information about him on the registration forms and to change the chil­dren's surname to reflect that inclusion - The British Columbia Court of Appeal held that the mother's refusal to acknowl­edge the father under s. 3(1)(b) of the Vital Statistics Act was not an "error" or "omission" within s. 29 - Therefore the Director lacked jurisdiction under s. 29 to "correct" the record by adding the father's particulars to the registration or changing the children's names to include the father's upon his application at a later date - See paragraphs 65 to 89, 108 to 123, 171 to 187.

Names - Topic 306

Change of name - Child of unmarried parents - [See Names - Topic 9 ].

Cases Noticed:

Hewat's Divorce Bill, Re (1887), 12 App. Cas. 312, refd to. [para. 8].

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246; 142 D.L.R.(3d) 20, refd to. [para. 22].

Barlow v. Bateman (1730), 3 P. Wms. 65; 24 E.R. 971 (Ch.), refd to. [para. 33].

Barnardo v. McHugh, [1891] A.C. 388, refd to. [para. 36].

Doe on the demise of John Hurrell Lus­combe v. Yates et al. (1822), 5 B. & Ald. 544; 106 E.R. 1289 (K.B.), refd to. [para. 37].

Jackson v. Jackson, [1960] 3 All E.R. 621, refd to. [para. 41].

Rezek or Rennie, Re, [1947] O.W.N. 21 (Co. Ct.), refd to. [para. 49].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 73].

D. v. B., [1979] 1 All E.R. 92 (C.A.), refd to. [para. 74].

W. v. A., [1981] 1 All E.R. 100 (C.A.), refd to. [para. 74].

Dawson v. Wearmouth, [1998] 1 All E.R. 271 (C.A.), refd to. [para. 74].

Herrington v. Green (1999), 20 B.C.T.C. 218; 178 D.L.R.(4th) 568 (S.C.), consd. [para. 112].

O'Driscoll v. McLeod (1986), 10 B.C.L.R.(2d) 108 (Co. Ct.), refd to. [para. 121].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 132].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 148].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 174].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 12 R.F.L.(4th) 201; 124 D.L.R.(4th) 609, refd to. [para. 174].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693; 13 R.F.L.(4th) 1, refd to. [para. 175].

Birth Registration No. 99-00733, Re (2000), 133 B.C.A.C. 193; 217 W.A.C. 193 (C.A.), refd to. [para. 178].

J.S.D. v. W.L.V., [1995] B.C.J. No. 653 (C.A.), refd to. [para. 184].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 15 [para. 77].

Name Act, R.S.B.C. 1996, c. 328, sect. 2, sect. 3, sect. 4(1), sect. 4(3), sect. 4(4) [para. 19].

Vital Statistics Act, R.S.B.C. 1996, c. 479, sect. 3, sect. 4, sect. 29(3), sect. 29(4), sect. 29(5) [para. 13].

Authors and Works Noticed:

Catzman, M.A., Changing One's Name in Ontario (1961), 19 Toronto L. Rev. 103, pp. 107, 108 [para. 51].

Halsbury's Laws of England (1908), vol. 2, p. 438 [para. 36].

Halsbury's Laws of England (1936), vol. 23, pp. 555 to 557 [para. 32].

Counsel:

Dairn O. Shane, for the appellant;

Jeffrey M. Loenen, for the respondents, Attorney General of British Columbia and Director of Vital Statistics;

Martin O. Screech, for the respondent, R.E.;

Glen W. Bell, for Amicus Curiae.

This appeal was heard in Vancouver, British Columbia, on January 15, 2001, before Southin, Prowse and Newbury, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on May 23, 2001, and the following opinions were filed:

Southin, J.A. - see paragraphs 1 to 86;

Prowse, J.A., dissenting in part - see paragraphs 87 to 170;

Newbury, J.A. - see paragraphs 171 to 188.