R.K. v. M.S., (2002) 160 O.A.C. 351 (CA)

• Judge: Laskin, Feldman and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 05, 2001
• Jurisdiction: Ontario
• Citations: (2002), 160 O.A.C. 351 (CA)

R.K. v. M.S. (2002), 160 O.A.C. 351 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JN.055

R.K. (applicant/appellant) v. M.S. (respondent/respondent)

(C35903)

Indexed As: R.K. v. M.S.

Ontario Court of Appeal

Laskin, Feldman and Simmons, JJ.A.

June 19, 2002.

Summary:

An unmarried couple had a child. The mother registered the child with her surname. The father applied for an order requiring, inter alia, the mother to execute a joint election to change the child's name to a hyphenated surname. Alternatively, he sought an order requiring the Registrar General under the Vital Statistics Act to change the child's registered surname. The mother was willing to have the father's surname as a forename of the child, but was unwilling to hyphenate the surname.

The Ontario Superior Court in a decision reported at [2001] O.T.C. 8, dismissed the father's application. The father appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction - Parens patriae jurisdiction - An unmarried couple had a child - The mother had custody - She registered the child with her surname, claiming that the father was "unacknowledged by her" - The Ontario Court of Appeal held that s. 10(3)4 of the Vital Statistics Act permitted the mother to register the child with her surname - The court rejected the father's argument that it should exercise its parens patriae jurisdiction and in furtherance of the child's best interest order that the child bear a hyphenated name - There was a legislative scheme in place for the naming of children and changing their names - The legislature's view was that the best interests of affected children were met by compliance with the legislation - Even if the court's broad parens patriae jurisdiction allowed it, in an unusual case, to order a change of name in a child's best interest notwithstanding the legislative scheme, this was not such a case - The three were never a family unit and the mother was going to raise the child herself - See paragraphs 47 and 48.

Infants - Topic 822

Parents of - Birth registration - Rights of parents - Unmarried parents - An unmarried couple had a child - The mother had custody - She admitted the father's paternity - He paid child support and exercised access - The mother registered the child with her surname, claiming that the father was "unacknowledged by her" - Section 10(3)4 of the Vital Statistics Act provided that if a mother certified a child's birth and the father was "unknown to or unacknowledged by her" she could give the child her surname - The Ontario Court of Appeal stated that the only interpretation which gave an effective meaning to the phrase "unacknowledged by" as distinct from "unknown to" was the one which allowed the mother to know the father's identity, to acknowledge him as the father for other purposes, but not to acknowledge him for the purpose of registration of the child's birth - The Act did not remove any right of the father because he never had the right to be included in the register or to have the child bear his surname under prior legislation or at common law - See paragraphs 22 to 48.

Infants - Topic 822

Parents of - Birth registration - Rights of parents - Unmarried parents - [See Courts - Topic 2004 ].

Infants - Topic 823

Parents of - Birth registration - Acknowledgement of father - [See first Infants - Topic 822 ].

Infants - Topic 829

Parents of - Birth registration - Registrar - Duties and powers - Correction of errors - An unmarried couple had a child - The mother registered the child with her surname - The father applied for an order requiring the mother to execute a joint election to change the child's name to a hyphenated surname - Alternatively, he sought an order requiring the Registrar General under the Vital Statistics Act to change the child's registered surname - The Ontario Court of Appeal stated that "the role of the Registrar under s. 34 of the [Vital Statistics] Act to correct errors has no application where the mother has stated that the father is unacknowledged. This statement is made by choice of the mother and is not an inadvertent error. The fact that there is no appeal from the Registrar under this section is therefore not a legislative gap to be filled by the intervention of the court." - See paragraph 49.

Names - Topic 9

Names of children of unmarried parents - [See Courts - Topic 2004 and first Infants - Topic 822 ].

Names - Topic 306

Change of name - Child of unmarried parents - [See Courts - Topic 2004 and first Infants - Topic 822 ].

Words and Phrases

Unacknowledged - The Ontario Court of Appeal discussed the meaning of the word "unacknowledged", as found in s. 10(3)4 of the Vital Statistics Act, R.S.O. 1990, c. V-4 - See paragraphs 22 to 48.

Cases Noticed:

D.W.T. v. British Columbia (Attorney General) et al. (2001), 152 B.C.A.C. 243; 250 W.A.C. 243; 200 D.L.R.(4th) 685 (C.A.), folld. [para. 9].

Macartney et al. v. Warner (2000), 129 O.A.C. 120; 46 O.R.(3d) 641 (C.A.), refd to. [para. 22].

Teck Corp. v. Ontario (Minister of Finance) (1999), 124 O.A.C. 58 (C.A.), refd to. [para. 27].

Bapoo v. Co-operators General Insurance Co. (1997), 36 O.R.(3d) 616 (C.A.), refd to. [para. 27].

Statutes Noticed:

Vital Statistics Act, R.S.O. 1990, c. V-4, sect. 9, sect. 10 [para. 19]; sect. 10(3)4 [para. 6].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), pp. 131 [para. 27]; 163 [para. 31].

Ontario Law Reform Commission, Report on Changes of Name (1976), generally [para. 10].

Counsel:

Philip M. Epstein, Q.C., and Aaron Franks, for the appellant;

Joel Miller, for the respondent.

This appeal was heard on September 5, 2001, by Laskin, Feldman and Simmons, JJ.A., of the Ontario Court of Appeal. On June 19, 2002, Feldman, J.A., delivered the following decision for the court.