Digest: Trociuk v. British Columbia (Attorney General)
[2003] S.C.J. No. 32
2003 SCC 34
Court File No. 28726
Supreme Court of Canada
June 6, 2003 (23 pp.)
On appeal from the British Columbia Court of Appeal, [2001] B.C.J. No. 1052.
Trociuk, the father, and Ernst, the mother, were the parents of triplets and were estranged. On the statement of live birth, the mother marked that the children's father was unacknowledged. She alone chose and registered the children's surname under s. 3(1)(b) of the Vital Statistics Act (BC). The father requested that the registration forms be amended to include his particulars. The request was refused pursuant to s. 3(6)(b) of the Act, which precluded fathers from having such registrations altered. The father applied for a declaration that the sections violated the Charter. The application was dismissed. The decision was upheld by the Court of Appeal. The father appealed to the Supreme Court of Canada.
Held: Appeal allowed. The sections violated s. 15(1) of the Charter and were unconstitutional. They permitted differential treatment on the basis of sex. They had the effect of excluding the father's particulars from birth registrations, excluding him from participating in choosing his children's surname and then precluding any recourse. This arbitrary exclusion affected an interest that was significant and gave rise to the perception that the father's dignity had been infringed. The s. 15(1) violation was not saved by s. 1 of the Charter as the sections did not impair the rights of fathers as little as reasonably.
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"The question of the BC Courts In finding against Mr. Trociuk
"The question of the BC Courts In finding against Mr. Trociuk, "Justice Mary Southin" said there had been a "shift in legislative values," including those found in B.C.'s Family Relations Act, from 1978 onward. Writing for the majority, Madam Justice Southin said she inferred from the shift "that the Legislature of British Columbia no longer considers that marriage, in the classic sense of a union carried out according to usages prescribed by law of one man and one woman, a union which conferred a status with concomitant rights on the parties, their issue and their kin, is a social institution of paramount or, indeed, any importance. Whether the people of British Columbia generally understand that this is what the Legislature has accomplished, whether by accident or design, is an interesting question."
Although not sure whether the judge exaggerated marriage's loss of stature or whether politicians have, indeed, managed to wipe out all distinct treatment for married couples, she is positive the majority of Canadians support the traditional married family. Parliament passed a resolution in its favor two years ago, and the Supreme Court of Canada declared in the 1995 Egan decision that certain irrefutable "biological and social realities" underlie traditional marriage, and that the institution "has from time immemorial been firmly grounded in our legal tradition."
If all that has changed now, "I think the implications are huge to society," "We need to bring back the value of marriage, to safeguard the institution of marriage for the sake of families and, especially, children." If marriage means nothing,, then the stability and structure that children need is in serious jeopardy."
According to an Response from Chief Justice McEachern in Canada on charge that outsiders secretly influence the courts
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QUOTE'S FROM THE BC SUPREME COURTS
On the Trociuk case in British Columbia Supreme Courts
-- [ Madam Justice Mary Southin (British Columbia) ]
The legislature...has decreed that fathers have no rights in British Columbia
"The legislature no longer considers that marriage ... is a social institution of paramount or, ... any importance. ... The appellant is in no worse legal position than any other father."
"... The legislature has left no 'gap' in this question of a child's name and surname. It has decreed that fathers have no rights."
-- [ Madam Justice Mary Newbury, concurring: ]
"I acknowledge that the comprehensive plan adopted by the legislature ... will not work perfectly in every case. ... But there is good reason to believe [giving fathers an absolute right to be included in the registration] would cause far more harm than good and would be unreasonable in most cases where the problem arises."
***-- [ Madam Justice Jo-Ann Prowse, in dissent: ]
"The implications of this decision extend to all fathers and their children."
"Thus, for example, fathers who are willing to participate in their children's lives by providing financial and emotional support are excluded from the registration and naming process to the same extent as fathers who were little more than 'sperm donors,' or who impregnated the mother as a result of a sexual assault or incest or in the course of an abusive relationship."
"In many cases, the birth and naming of a child are the occasion of great ceremony involving the gathering together of family and friends. ... In many other cases, the naming of a child is a matter of family pride and honour associated with passing on, not only the family name or names, but also the family heritage from one generation to the next."
The law "withholds a benefit from fathers in a manner which has the effect of signaling to them and to society as a whole that fathers are less capable or less worthy of recognition or value than mothers, and that they are regarded as being equally deserving of concern, respect and consideration."
Other Summery by the courts of BC
[76] In my opinion, the Legislature has left no "gap" in this question of a child's name and surname. It has decreed that fathers have no rights. The Act is clear and the Registrar
[84] There is nothing in the evidence in this case to persuade me that the benefits to fathers of such judicial statute revision would not be thought, by many mothers and would-be mothers, especially those who have deliberately chosen to be single mothers, to be a serious diminution of their rights to constitute "discrimination" against them.
Darrell appeal is going forward to the Supreme Court of Canada. Read Hon. Madam Justice Prowse' dissenting opinion...pages 51 - 87.
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Trociuk v. British Columbia
| Citation: |
Trociuk v. British Columbia (Attorney General) |
Date: 20010523
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Docket: CA025972
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2001 BCCA 368 |
Registry: Vancouver
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COURT OF APPEAL FOR BRITISH COLUMBIA
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| BETWEEN: |
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DARRELL WAYNE TROCIUK
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PETITIONER (APPELLANT)
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| AND: |
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THE ATTORNEY GENERAL OF BRITISH COLUMBIA and
THE DIRECTOR OF VITAL STATISTICS and RENI ERNST
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RESPONDENTS (RESPONDENTS)
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| Before: |
The Honourable Madam Justice Southin |
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The Honourable Madam Justice Prowse |
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The Honourable Madam Justice Newbury |
| Dairn O. Shane |
Counsel for the Appellant
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| Jeffrey M. Loenen |
Counsel for the Respondents, Attorney General of British Columbia and Director of Vital Statistics
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| Martin O. Screech |
Counsel for the Respondent, Reni Ernst
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| Glen W. Bell |
Amicus Curiae
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| Place and Date of Hearing: |
Vancouver, British Columbia
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15th January, 2001
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| Place and Date of Judgment: |
Vancouver, British Columbia
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23rd May, 2001
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Written Reasons by: The Honourable Madam Justice Southin
Dissenting Reasons by: The Honourable Madam Justice Prowse (P. 51, para. 87)
Concurring Reasons in the Result by: The Honourable Madam Justice Newbury (P. 88, para. 171)
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Reasons for Judgment of the Honourable Madam Justice Southin:
[1] The appellant brings this appeal from a judgment of the Honourable Mr. Justice Collver pronounced the 17th May, 1999, dismissing his petition for orders, inter alia, in the nature of mandamus:
1. ... compelling the Director of Vital Statistics to register the adult Petitioner as the father of the child Petitioners (the "children") on the birth registration forms, pursuant to the provisions of the Vital Statistics Act;
2. ... compelling the Director of Vital Statistics to change the surnames of the children from "Ernst" to "Ernst-Trociuk", pursuant to the provisions of the Vital Statistics Act;
3. ... pursuant to the court's parens patria [sic] jurisdiction, compelling the Director of Vital Statistics to register the adult Petitioner as the father of the children on the birth registration forms;
4. ... pursuant to the court's parens patria [sic] jurisdiction, compelling the Director of Vital Statistics to change the surnames of the children from "Ernst" to "Ernst-Trociuk";
He also claims:
5. A declaration that s. 3(1) of the Vital Statistics Act, R.S. Chap. 479, (1996), (the "Act") discriminates on the basis of sex and violates s. 15(1) of the Charter, insofar as s. 3(1) grants the mother of the child complete and unfettered power to refuse to acknowledge the biological father of the child on the birth registration forms;
[2] The proceedings were commenced in the names of "R.(E.), A.(E.), and D.(E.), by their Litigation Guardian, DARRELL WAYNE TROCIUK, and the said DARRELL WAYNE TROCIUK" against the Attorney General of British Columbia and the Director of Vital Statistics only.
[3] On 3rd December, 1998, a notice of constitutional question was given to the Attorney General of British Columbia and the Attorney General of Canada, thus:
TAKE NOTICE that the Petitioners have challenged the constitutional validity of ss. 3(1) and 3(6) of the British Columbia Vital Statistics Act, R.S. Chap. 479 (1996).
No date has been set for the argument of this challenge.
The Petitioners allege that the impugned sections violate ss. 7, 12, and 15 of the Charter of Rights and Freedoms, insofar as the impugned sections grant to the mother of children born in British Columbia complete and unfettered discretion to refuse to acknowledge the biological father of the children on the birth registration forms, and grant to the mother complete and unfettered discretion to insist that the children carry only the mother's last name.
[4] By letter dated 4th January, 1999, the Attorney General of Canada declined to intervene, saying that the issue is a "private and provincial matter".
[5] On 25th February, 1999, Collver J. ordered:
... that the Infant Petitioners R.(E.), A.(E.), and D.(E.), be removed as parties to the proceedings and that their names be struck from the style of cause.
[6] Although no reasons for judgment for that day are available, the learned judge, in his reasons delivered consequent upon the hearing of the petition, alluded to this question:
... he petitioned on his own behalf and as "Litigation Guardian" for the children, notwithstanding that he and the mother share guardianship. That aside, it is primarily his interests at stake here and it is inappropriate for him to purport to act for himself and the children: Outs (Guardian ad litem of) v. Gervais (1994), 99 B.C.L.R. (2d) 305 (S.C.).
[7] On 14th October, 1999, Mr. Justice Lambert heard an application for the appointment of an amicus curiae to represent the interests of the children. Although he concluded that it was improbable that an amicus curiae could add anything to the arguments of the parties already before the court, he referred the application to the panel hearing the appeal, acknowledging that it might have a different view. Also, he added the mother as a party to the appeal.
[8] On the 1st May, 2000, a division of this Court concluded that an amicus curiae was needed "to represent the interests of the children". As to the importance of not prejudicing the rights of children in their absence, see Re Hewat's Divorce Bill (1887), 12 App. Cas. 312 at 314.
[9] The child petitioners referred to are triplets born on 29th January, 1996, of which the appellant is the natural father and to whose mother he is not now and never has been married. The evidence does not disclose whether both were unwilling to marry or, if one was willing and the other not, which was which. Upon their birth, she registered them without acknowledging the appellant as their father. Hence, their surname, by virtue of the Vital Statistics Act, R.S.B.C. 1996, c. 479, is her name.
[10] Although she concedes the paternity of these children, she does not want them to bear his surname and will not put his name on the birth certificate if, by her doing so, they, as a matter of law, will have to bear both surnames. The Director of Vital Statistics has said he has no legal authority to put the father's name on the birth certificate. He raises no issue of a lack of demand in proper form.
[11] In this Court, the appellant seeks these orders in addition to those which I have mentioned:
1. Pursuant to Section 52(1) of the Canadian Charter of Rights and Freedoms (the "Charter"), that sections 3(1) and 3(6) of the Vital Statistics Act, R.S.B.C. 1996, Ch. 479 (the "Act") are of no force and effect, insofar as they violate Section 15(1) of the Charter and are not saved by Section 1 of the Charter, as they allow a mother to prohibit a known father from being registered as the father of their child, with no right of appeal from this prohibition.
In the alternative:
2. Pursuant to Section 24(1) of the Charter, that the words "or is unacknowledged by" be removed from Section 3(1)(b) and 3(6)(b) of the Act, insofar as they violate Section 15(1) of the Charter and are not saved by Section 1 of the Charter, as they allow a mother to prohibit a known father from being registered as the father of their child, with no right of appeal from this prohibition.
[12] For his part, Mr. Bell makes this submission in Part IV of his factum:
The amicus curiae seeks no order for himself, but submits that the appeal should be allowed and that the following alternative orders would be appropriate:
Alternative Order #1: Parens patriae
An order that the Director of Vital Statistics amend the birth registrations of Ryan Tony Jacob Ernst, Andrew Jessi Roy Ernst and Daniel James Lucas Ernst, bearing registration numbers 96-003170, 96-003171 and 96-003172, respectively, by changing the surname of each to Ernst-Trociuk and by including the particulars of Darrell Trociuk as the father.
Alternative Order #2: Charter
A declaration that section 3(1)(b) and (6) and section 4 of the Vital Statistics Act unlawfully discriminate against Darrell Trociuk, contrary to section 15(1) of the Canadian Charter of Rights and Freedoms, insofar as they deny him the right to participate in the selection of the surname of his children born to Reni Ernst on January 29, 1996, and to that extent they are of no force or effect.
A declaration that the birth registrations of Ryan Tony Jacob Ernst, Andrew Jessi Roy Ernst and Daniel James Lucas Ernst, bearing registration numbers 96-003170, 96-003171 and 96-003172, respectively, are void.
An order directing the Director of Vital Statistics to issue replacement birth registration forms to Reni Ernst and Darrell Trociuk for completion by both of them in accordance with the terms of this judgment.
An order directing Darrell Trociuk and Reni Ernst to complete the replacement birth registration forms and deliver them to the Director of Vital Statistics.
[13] These are the sections of the Vital Statistics Act, supra, at issue:
[14] This Statute differs from the first Vital Statistics Act of this Province, which was enacted in 1872, (Registration of Births, Deaths and Marriages, 35 Vict., c. 26) in two significant aspects:
[15] Although the facts I stated at the opening of this judgment are, in my opinion, all the facts material to the issues of law which properly arise as between the appellant and the Director of Vital Statistics on this petition for judicial review, I now quote much of the statement of facts from the appellant's factum, for as I understand the arguments of the appellant and the amicus curiae founded on the parens patriae jurisdiction, they submit that these other facts are relevant:
2. In or about May 1993, the Appellant engaged in consensual sexual relations with a female person ("RE"). The Appellant lived with RE from approximately June 1993 to August 1994.
3. In or about August 1994, RE moved out. However, the Appellant and RE continued to engage in consensual sexual relations.
4. As a result of these relations, RE became pregnant. The conception occurred in approximately June 1995.
5. RE advised the Appellant that the Appellant was the father. RE also admitted to all other interested parties that the Appellant was the father.
6. The Appellant assisted and cared for RE during the course of her pregnancy. Examples of this assistance and care include the following:
(i) RE stayed at the Appellant's home for approximately three weeks in November 1995;
(ii) After RE was admitted to the hospital as a "high risk situation" in December 1995 the Appellant visited her constantly, including sleeping over during Christmas and New Years;
(iii) The Appellant continued to visit her in the hospital in January 1996, and brought her meals, etc.
7. On the morning of January 29, 1996, RE gave birth to three children (the "children"). The Appellant was present throughout the birthing process, and had been there since the night before.
8. Following the birth the Appellant's family attended, and took various pictures of the children, RE, and the Appellant.
9. RE was ill for several days afterwards, during which time the Appellant remained at the hospital to assist her.
10. Approximately one week later, RE and the Appellant began to discuss the names for the children. As both wanted the children to have their last name, they agreed on joint last names as the logical solution.
11. In or about this time, and unknown to the Appellant, RE filled out the birth registration forms, and entered the father as "unacknowledged". The Appellant discovered this shortly after and told RE that he wanted to be acknowledged and wanted to have joint last names. After a short discussion RE agreed to change the birth registration forms.
12. In or about the end of February 1996, RE was released from hospital and came to live at the Appellant's home.
13. On or about March 14, 1996, two of the children were released from the hospital and came to live at the Appellant's home.
14. On or about March 24, 1996, RE moved to the residence of her foster daughter, stating that the Appellant's home was "too full".
15. On or about March 29, 1996, the Appellant paid for the circumcision procedure for the children. At or around this time, the Appellant affirmed his intention to fully support the children both financially and emotionally.
16. On or about April 20, 1996, all three children were released from the hospital. RE took the children to live with her foster daughter.
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24. In or about July or August 1996, the Appellant attempted to initiate a non-adversarial meeting with RE in the presence of a family court counsellor in order to establish his custody rights.
25. RE did not respond.
26. On or about September 12, 1996, the Appellant commenced proceedings in Provincial court in an effort to become involved in the lives of the children. The Appellant requested access, custody and guardianship rights.
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29. On or about May 20, 1997 the Appellant was granted access to the children.
30. On or about May 15, 1997 the Appellant requested DNA testing from the court, in order that he could conclusively prove that he was the father. The request was granted.
31. On or about July 8, 1997 the Appellant obtained, at his own expense, positive DNA evidence which conclusively proved that he is the father of the children.
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33. On or about September 5, 1997, at the request of the Appellant, Mr. Justice Lander of the British Columbia Supreme Court recognized the Appellant as the father and ordered access and child support.
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45. The Appellant is a self-employed, hard-working Canadian citizen. The Appellant has never abused the children, never abused RE, and has never missed a support payment for the children.
[16] I should add to that that in May 1998 the appellant was ordered to pay for the maintenance of these children the Guideline amount of $209.00 per month, his income being about $1,000.00 or $1,100.00 per month.
[17] To the appellant's statement of facts must be added these from the factum of the mother:
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6. On September 5, 1997, the Honourable Mr. Justice Lander awarded the Respondent [mother] interim custody of the Triplets and provided the Appellant with six hours of access every Saturday commencing September 6, 1997. Additionally, the Court ordered that the access was to be reviewed on February 2, 1998, and that the Appellant's application for interim joint custody and joint guardianship were also to be heard on that date.
7. On February 10, 1998, the matter was once again before the Honourable Mr. Justice Lander. Counsel for the Respondent [mother] noted that the Appellant had only exercised access twice since the making of the Order in September of 1997. This evidence was uncontradicted by the Appellant at the hearing. All issues were adjourned to May 6, 1998.
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9. Although initially unwilling to acknowledge the Appellant on the Registration Forms of the Triplets, the Respondent [mother] subsequently offered on numerous occasions to amend the Registration Forms so that they included the particulars of the Appellant.
10. Despite the willingness of the Respondent [mother] to include the particulars of the Appellant on the Registration Forms the Appellant has repeatedly refused to take steps to accomplish this because the Respondent [mother] will not simultaneously agree to hyphenate the last name of the Triplets.
[18] For their part, the Director and the Attorney General submit that certain other facts are relevant to the issues on appeal:
8. The British Columbia Vital Statistics Agency ("Vital Statistics") is a division of the Ministry of Health and Ministry Responsible for Seniors. The Vital Statistics Act, (the "Act") provides for the mandatory registration of birth, marriages and death. The Act also provides for the registration of the surname of children whose births are registered under it. Section 3 of the Act sets out who is obligated to complete and deliver a statement respecting the birth as well as the particulars to be included in that statement. Section 4 of the Act sets out the manner in which the surname of the child must be registered.
9. Section 3(1)(a) of the Act requires both parents to complete and deliver a statement in the required form, known as the Registration of Live Birth (the "Registration Form") except where the father is "incapable or is unacknowledged by or unknown to the mother". In any of those circumstances, Section 3(1)(b) of the Act requires the child's mother to complete and deliver the Registration Form. Where only one person is making the statement required under subsection (1), such as the mother pursuant to section 3(1)(b), Section 3(3) requires an affidavit from that person "setting out the facts that require the statement to be made by the declarant". Section 3(5) of the Act requires that the statement contain "particulars of the mother and, if the father makes a statement, particulars of the father".
10. Section 4(1) of the Act provides that where only one parent completes the statement pursuant to section 3, the surname must be the one chosen by that parent. If however, both parents complete the statement pursuant to section 3 but do not agree on the child's surname, then the surname must be one consisting of both parents' surnames hyphenated or combined in alphabetical order if they have different surnames.
11. If the father's particulars are not included at the time the birth is registered, those particulars may be subsequently included on the Registration Form where an application to add them is made by both parents pursuant to either sections 3(6) or 29(4) of the Act. Where such application is made and the Registration Form is amended to include the father's particulars, the surname of the child is not changed.
12. If the parents, in addition to including the father's particulars on the Registration Form, also want to change a child's surname, it is the practice of Vital Statistics that the child's name must be changed pursuant to the provisions of the Name Act, R.S.B.C. 1996, c. 328. The only exception to that practice is where the surname change is sought by the parents within a short period after the Registration Form has been submitted. In that latter instance, where it is unlikely that the information recorded in the Registration Form will have been relied upon to produce any documentation such as a birth certificate, the surname may be changed pursuant to the Vital Statistics Act.
13. Of the total number of live births registered in each of 1996, 1997 and 1998, approximately 5% were registered without particulars of the fathers. The most common circumstance known to the Director of Vital Statistics (the "Director") where mothers do not acknowledge the father of the child born is where the father is no longer in contact with the mother or disputes that he is the father of the child. Other circumstances known to the Director include where the mother has had sexual relations with multiple partners and is uncertain who the father is but does not want to state that the father is unknown; where the mother is a victim of incest; where the birth of the child was a result of non-consensual relations; where the mother was involved in an abusive relationship with the father and does not want the relationship to continue; and in instances of teenage pregnancy.
14. It is the Director's belief, based on his knowledge and experience as Director, that if the mother was required to include the father's particulars, information would be less readily provided and would be less reliable. In some instances, the information provided would wrongly name as the father a person who was not the father of the child. The result would be inaccurate statistics with respect to the registration of births in the Province and the creation of a potential source of dispute regarding paternity.
[19] The Name Act, R.S.B.C. 1996, c. 328, provides:
2 (1) A person in British Columbia must not change his or her name unless authorized so to do by section 4, and then only in the manner provided by this Act.
(2) Subsection (1) does not apply to any of the following:
(a) a change in the surname of one spouse to the surname of the other spouse;
(b) a change in name resulting from adoption under the Adoption Act;
(c) a change of name appearing on a certificate of naturalization;
(d) a change in name under the Vital Statistics Act;
(e) a change of name under section 5.
3 A spouse by marriage may
(a) use the surname he or she had immediately before the marriage,
(b) use the surname he or she had at birth or by adoption, or
(c) use the surname of his or her spouse by marriage.
4 (1) Subject to this section, a person who has attained the age of majority or, if the age of majority has not been attained, is a parent having custody of his or her child and who is domiciled in British Columbia for at least 3 months, or has resided in British Columbia for at least 3 months immediately before the date of the application, may, unless prohibited by this or another Act, change his or her name on complying with this Act.
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(3) Subject to subsection (4), a person who is the parent of and who has custody of an unmarried minor child may, with the consent of the other parent of the child, apply to change the child's name, but, if the application is to change the child's surname to that of the applicant's spouse, the consent of the spouse is required.
(4) If a person applies to change the name of an unmarried minor child who has attained the age of 12 years, he or she must first obtain the consent in writing of the child.
[20] The Change of Name Act, S.B.C. 1940, c. 3, was the first Act of this Province governing persons' names. The mischief at which it was directed I shall address hereafter. Suffice it to say now that, in my opinion, that mischief long ago ceased to exist, if it ever really were a social problem, and the Act might, without doing any grave harm to society, be repealed.
THE JUDGMENT BELOW
[21] The learned judge below first addressed s. 29 of the Vital Statistics Act, supra, and found there was no error to be corrected. He said:
[15] In considering the Director's corrective role, how does one define an error or omission? Counsel for the father submits that where a mother refuses to acknowledge a father without a valid reason, that omission constitutes non-compliance with the intent of the Act, and the father's application to the Director should have been granted. That seems to imply that where only one parent fulfills the s.3 reporting requirements it is then open to the other parent to use s.29(4) to challenge either the "non-acknowledgement" or the use of one surname. I do not agree with that interpretation of s.29(4).
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[18] Although s.3(6) requires the Director to act where the registration statement is completed by only one parent and both parents together apply to alter registration, that section does not apply here and mandamus cannot lie. Similarly, the surname registration provisions of s.4(1)(c) do not apply since only one parent completed the s.3 statement, and mandamus cannot lie. Finally, the Director conducted his mandatory inquiry and determined, exercising his discretion, that no correction was in order. Therefore, mandamus cannot lie.
[22] As to a submission to him founded on the parens patriae jurisdiction - a legislative gap argument based on Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20, - he responded in this way:
[28] First, there is no legislative gap to be filled here. Although the Director advised the father that his agency favours a legislative change which would allow him to amend registration on the basis of a court order or presumption of paternity, the scheme is meant to foster prompt and accurate completion and filing of statements as prescribed in ss. 3 and 4 of the Act. It does that, even though there is always the prospect of mischief in sole reporting.
[29] Second, there is a paucity of evidence in this case to support the father's assertion that the children's registered surname of "Ernst" is not in their best interests. Whether it would be inherently more difficult for them to answer to "Ernst-Trociuk" throughout their lives is not the point. The respondents raise a much more important factor: since their births the children have lived only with their mother and have had little involvement with their father.
[23] Lastly, Collver J. addressed the Charter argument and held that if the legislative provisions in issue were "discrimination" on the ground of "sex", they were saved by s. 1.
THE ARGUMENTS OF THE PARTIES IN THIS COURT
[24] The appellant and the respondents Director and Attorney General make here the arguments they made before the learned chambers judge.
[25] As amicus curiae, Mr. Bell has focused on the "best interests" branch of the parens patriae submission.
[26] He puts the best interests of the children this way:
12. In assessing what is in the best interests of a child, the particular circumstances of the case will be determinative, and in general these will vary markedly from case to case. Except perhaps to identify the types of factors which ought to be considered, it will be unwise to lay down general rules. In the submission of the amicus curiae, bearing in mind the particular circumstances of this case, it is in the best interests of the children for their name to include their father's surname. This conclusion is supported by the following considerations:
(a) the father was present for the births, indicating a true emotional connection with the children which bodes well for their future development; if the children share the father's name, it will tend to promote the father's attachment;
(b) the father is willing to be acknowledged as such, and has gone to some trouble to provide evidence of paternity; he is not a mere "sperm donor";
(c) the father has provided regular financial support for the children which shows his commitment to their welfare;
(d) the father has taken legal action to gain access to the children indicating his strong attachment to them; although the frequency of his visits has declined recently, this is at least partly attributable to the fact that the mother moved the children to a distant community and the father's limited financial resources, as well as the ongoing tensions over the name dispute;
(e) it is in the children's interest to grow up with a sense of their family heritage; their surname is an important part of that heritage, a part that they will be capable of understanding at an early age;
(f) it is still the social norm for children, whose fathers are known, to have their father's name; it will promote their psychological health to see themselves and be seen as normal;
(g) it is in the children's interests to know who their father is, to have a loving relationship with him and to identify with him, especially since they are boys; these interests would be promoted if they shared their father's last name;
(h) the father has always treated the mother with respect, if not affection, indicating that he is conscious of the importance to the children of a respectful relationship between their parents; such a relationship shows the children that they are loved by both parents; joint last names are consistent with that relationship and will symbolize it in the minds of the children.
13. In taking this position the amicus curiae has considered the reasons advanced by the mother for not wanting the father's name as part of the children's. These reasons are set out in her affidavit (Appeal Book, page 163, para 3). They focus primarily on the lack of a marital relationship between her and the father and the fact that she bore the children and is the primary care giver. The father can be a good father even if the children do not carry his name. She points out that the children can change their names when they are old enough to make an independent decision. After weighing these considerations against those factors listed in the previous paragraph, the amicus curiae finds that the interests of the children would be better served if they shared the father's surname.
[27] I think it fair to say that, as amicus curiae, Mr. Bell has thrown in his lot, or the children's lot, with the father.
[28] For her part, the mother supports the judgment of the learned judge below.
[29] I propose in the course of this judgment to refer to the common law relating to the adoption and use of a surname and the history of legislation in British Columbia relating to vital statistics, adoption, change of name, and the status of children born out of wedlock. I do so for three reasons: the first is that there are occasions, and this is one such, when in order to discover what the law is and where, depending upon the decision reached in the instant case, the law may be going, it is helpful to review where the law once was and how it has arrived at where it is; the second is that the extent to which the Legislature, by various enactments of the last century or so, has occupied the field, so to speak, of the parens patriae jurisdiction bears on Mr. Bell's argument; the third is that the word "discrimination" as it is used in the Charter must take something of its breadth, although I would not presume to say how much, from the world of the framers of the Charter. Would they have thought that this complaint of the appellant was a complaint of "discrimination"? To what extent, if at all, does the ancient maxim "de minimis non curat lex" apply to allegations that certain governmental action is worthy of a Charter remedy?
(a) The Common Law
[30] The Colony of British Columbia, i.e. the Mainland, was established pursuant to an Imperial Act of 1858. On the 19th November, 1858, by various proclamations, the "Civil and Criminal Laws of England, as the same existed" and "so far as they are not from local circumstances inapplicable ... shall ... remain in full force til ... altered...."
[31] On the 6th March, 1867, the Colony of Vancouver Island and its Dependencies and the Colony of British Columbia having been united (British Columbia did not join Confederation until 1871), Governor Seymour assented to Ordinance No. 7 which continued the date of 19th November, 1858, as the date of introduction of English law in the united colony.
[32] The second edition of Halsbury's Laws of England, vol. 23, (London: Butterworth, 1936) describes the common law as to "Name and Arms, Change of" in these terms, at 555-557:
810. Subject to certain restrictions imposed in the case of aliens, the law prescribes no rules limiting a man's liberty to change his name. He may assume any name he pleases in addition to or substitution for his original name; and in adopting even the name or combination of names by which another person is already known he does not commit a wrong against that person. The law concerns itself only with the question whether he has in fact assumed and has come to be known by a name different from that by which he was originally known.
811. With regard to the first or christian name given to a person on baptism, it is said that it can be changed on confirmation, and it seems to be implied that otherwise no change is possible. It is probable that the name given at baptism is the correct first, or proper, name, and that an assumed name does not displace it; but if a man has become generally known by a name which he has assumed in addition to, or in place of, his baptismal name, there is no doubt that the name so assumed is valid for purposes of legal identification.
In some few cases authority to take a new first name has been given by Royal Licence, and in a modern instance such authority was given by Act of Parliament.
A person who in executing an instrument subscribes a first name which is not his christian name may be sued in that name, and is bound as he would be if he had signed his proper name. In this respect there is no difference between the christian or first name and the surname.
812. As regards surnames, there never was any doubt that, as in the first instance they were arbitrarily assumed, so they could be changed at pleasure. An Act of Parliament, Royal Licence, or other such formality is not required for the purpose.
* * *
814. When a woman on her marriage assumes, as she usually does in England, the surname of her husband in substitution for her father's name, it may be said that she acquires a new name by repute. The change of name is in fact, rather than in law, a consequence of the marriage. Having assumed her husband's name she retains it, notwithstanding the dissolution of the marriage by decree of divorce or nullity, unless she chooses thereupon to resume her maiden name or acquires another name by reputation. On her second marriage there is nothing in point of law to prevent her from retaining her first husband's name.
[Footnotes omitted]
In the footnotes, we find this, at 556:
(h) The practice of using surnames was, it is said, first introduced about the time of the Norman conquest, and was not commonly adopted until the close of the fourteenth century;...
[33] Among the authorities cited is Barlow v. Bateman (1730), 3 P. Wms. 65, 24 E.R. 971 (Ch.), a case which had to do with a will in which the testator had specified that his daughter should receive a certain legacy if she married a man of a certain surname:
Surnames are not of very great antiquity; for in ancient times the appellations of persons were by their Christian names, and the places of their habitation; as Thomas of Dale, viz. the place where he lived. I am satisfied the usage of passing acts of Parliament for the taking upon one a surname is but modern; and that any one may take upon him what surname, and as many surnames as he pleases, without an act of Parliament.
[34] The note to this case indicates that the decree made was later reversed but no doubt was cast upon this proposition.
[35] Thus, at common law, an adult could call himself anything he chose.
[36] What of the surname of a child? In the first edition of Halsbury (1908), vol. 2, p. 438, we find, "a bastard has no surname by inheritance but he may acquire one by reputation". This proposition appears to be an application of the accepted doctrine that a child born out of wedlock was filius nullius. Thus, in Barnardo v. McHugh, [1891] A.C. 388 at 398, Lord Herschell remarked:
It seems to me that there was in former times a disposition to carry out rigorously to its logical conclusion the doctrine that an illegitimate child was filius nullius, and to hold that no one possessed in relation to it the full parental rights which the law recognises in the case of legitimate offspring. When Maule J., in the case of In re Lloyd [3 M. & G. 547], asked, "How does the mother of an illegitimate child differ from a stranger?" it does not appear to me that he was speaking ironically, but rather stating bluntly this legal doctrine. But whatever may have been the view in former times, I cannot but think that the legislation embodied in the Poor Law Act (4 & 5 Will. 4, c. 76, s. 71) renders it impossible in the present day to regard the mother of an illegitimate child as destitute of any rights in relation to its custody. The obligation cast upon the mother of an illegitimate child to maintain it till it attains the age of sixteen appears to me to involve a right to its custody.
It is, however, no longer important to inquire what are the rights of the mother in relation to an illegitimate child at common law. All the Courts are now governed by equitable rules, and empowered to exercise equitable jurisdiction. As was said by Sir George Jessel M.R., in Reg. v. Nash [10 Q.B.D. 454]: "In equity regard was always had to the mother, putative father, and relations on the mother's side."
[37] Although a child born in wedlock acquired a surname by inheritance, he was able to dispense with it at any time. See Doe on the demise of John Hurrell Luscombe v. Yates et al (1822), 5 B. & Ald. 544, 106 E.R. 1289 (K.B.) at 1294:
For a name assumed by the voluntary act of a young man at his outset into life, adopted by all who know him, and by which he is constantly called, becomes, for all purposes that occur to my mind, as much and effectually his name as if he had obtained an Act of Parliament to confer it upon him. We would not be understood to say that where a testator expressly requires a name to be taken by Act of Parliament, or other specified mode, any mode falling short of the specified mode may be substituted for it; or to say, that under this particular will a voluntary assumption of the name after the party became possessed of the estate, would be sufficient. All we mean is this, that as the testator has annexed no express qualification to the words, bearing the surname of Luscombe, and the word surname is not used in this will to denote a name inherited from the father, and as a bearing de facto, answers every useful purpose that could be obtained under the authority of an Act of Parliament, a bearing de facto, though by voluntary assumption, is sufficient to satisfy the general and ordinary meaning of the words "bearing the surname;" and we cannot say with certainty that the testator intended any thing more, or meant to use the words in that qualified and restrained sense which must be given to them in order to pronounce that the condition has been broken, and that the estate shall pass over to another claimant. For these reasons we, who heard the argument, are of opinion that a nonsuit should be entered. [per Abbott C.J.]
(b) Statute Law
[38] In 1872, British Columbia decided that it was expedient to provide for registration of marriages, births and deaths in the Province of British Columbia and therefore enacted a statute [35 Vict., c. 26] which provided in part:
5. The father of any child born in this Province, or, in case of his death or absence, the mother, or, in case of the death or inability of both parents, any person standing in the place of the parents, or, if none such there be, then the occupier of the house or tenement in which to his knowledge such child was born, or the nurse present at the birth, shall, within sixty days from the date of such birth, give notice thereof to the Registrar of the District in which such child was born, giving as far as possible the particulars required in Schedule A, with such additional information as may be required by the Registrar-General from time to time, which particulars shall be entered by the District Registrar in his book.
6. In registering the birth of an illegitimate child, it shall not be lawful for the name of any person to be entered as the father, unless at the joint request of the mother and of the person acknowledging himself to be the father; and in all cases of the registration of the birth of illegitimate children the District Registrar shall write the word "illegitimate" in the column set apart for the name of the child, and immediately under the name, if any.
[39] Schedule A required to be given "when born", "name", "sex", "name and surname of father", "name and maiden surname of mother" and certain other information. It is plain from Schedule A that the word "name" for the infant referred to what we now call first names.
[40] Because this Act so closely resembles certain English legislation, I think it useful to refer to it. The first legislation of any substance in England on the registration of births and deaths was 6 & 7 Will. 4, c. 86. That Act provided for the names of the mother and father to be registered but said nothing about children born out of wedlock. In 1874, a substantial amendment was made to the law relating to the registration of births and deaths in England and included was this section [Registration of Births and Deaths Act, 1874, 37 & 38 Vict., c. 88]:
7. In the case of an illegitimate child no person shall, as father of such child, be required to give information under this Act concerning the birth of such child, and the registrar shall not enter in the register the name of any person as father of such child, unless at the joint request of the mother and of the person acknowledging himself to be the father of such child, and such person shall in such case sign the register, together with the mother.
[41] I deduce that the legislative draftsman here used a draft of the proposed English Act. I think it also highly probable that the purpose of s. 7 of the English Act of 1874 was to prevent the use of a birth certificate in which the mother had named the father as evidence of paternity in an affiliation proceeding under the Bastardy Acts, the first of which was enacted after the registration act of 1836. See, as to the evidential value of the information contained in birth certificates, Jackson v. Jackson, [1960] 3 All E.R. 621, and particularly the mid-nineteenth century authorities therein cited.
[42] Until 1922, British Columbia had no statute of its own under which a court could order the father of an illegitimate child to support the child. It is therefore puzzling that the Legislature thought it necessary, by the Act of 1872, to suppress the identity of fathers of illegitimate children. Perhaps the Legislature considered the English Bastardy Acts were in force here by virtue of English law having been part of the law of the Colony as of the 19th November, 1858. How the mothers of illegitimate children born in this Province managed financially up to the year 1922 [Children of Unmarried Parents Act, S.B.C. 1922, c. 9, ss. 3 and 4] - it would be straining credulity to believe that British Columbians were so moral that there were no illegitimate children - might be an interesting study for a social historian.
[43] By the time of the Revised Statutes of British Columbia of 1924 coming into effect, the Vital Statistics Act, R.S.B.C. 1924, c. 268, no longer contained the necessary form of registration and provided that the registration should be by a "declaration in the prescribed form".
[44] Three statutes of this period must be noted. On 17th April, 1920, the Province's first Adoption Act, S.B.C. 1920, c. 2, received Royal Assent. By it:
3. Any adult unmarried person, or any adult husband or wife, or any adult husband and his adult wife together, may adopt an unmarried minor by applying for and obtaining leave pursuant to this Act.
* * *
7. Upon the making of the order of adoption:-
(a) The natural parents of the minor, and any pervious parent by adoption, and the guardian or person in whose custody the minor has been shall be divested of all legal rights in respect of the minor, and shall be freed from all legal obligations and duties in respect of the minor as from the date of the order:
(b) The minor shall take the surname of the petitioner as his parent by adoption, or such name as the Court on the request of the petitioner may order:
(c) The parent by adoption and the minor shall sustain toward each other the legal relation of parent and child, and shall respectively have all the rights, and be subject to all the obligations and duties of that relation, including the right of inheritance and succession to real and personal property from each other, except as those rights are affected by the provisions of this Act.
8. (1) As to inheritance and succession to real and personal property, a minor adopted in accordance with the provisions of this Act shall stand in regard to the legal descendants, but to no other of the kindred of his parent by adoption, in the same position as if born to that parent in lawful wedlock.
(2) No person shall by being adopted lose his rights of inheritance and succession to real and personal property from his natural parents or kindred.
[45] Two years later, by the Legitimation Act, S.B.C. 1922, c. 43, it was enacted that a child born out of wedlock whose parents married either before or after the passing of the Act was deemed legitimate from the time of birth. Although the legislation said nothing of the surname of such a child, I infer that a child so legitimated thereby acquired a surname "by inheritance".
[46] The third of these statutes is the Administration Act Amendment Act, 1925, S.B.C. 1925, c. 2, s. 4, which re-enacted the intestate succession provisions of the Administration Act, R.S.B.C. 1924, c. 5, and provided for the first time that illegitimate children should inherit as if they were the legitimate children of the mother. The Act of 1925 had a drafting blunder in it and, in the upshot, by an amendment of 1926-27, c. 2, the relevant sections read:
124. Illegitimate children and their issue shall inherit from the mother as if the children were legitimate, and shall inherit through the mother, if dead, any real or personal property which they would have taken if the children had been legitimate.
125. If an intestate, being an illegitimate child, dies leaving no widow or issue, his estate shall go to his mother, if living, but if the mother is dead his estate shall go to the other children of the same mother in equal shares, and if any child is dead the children of the deceased child shall take the share their parent would have taken if living: Provided that where the only persons entitled are children of deceased children of the mother, they shall take per capita.
[47] To complete the picture of this statute, by the Administration Act Amendment Act, 1959, S.B.C. 1959, c. 2, those sections were repealed and what was substituted was:
[48] On the 6th December, 1940, the Legislature enacted the Change of Name Act, S.B.C. 1940, c. 3, which provided in part:
[49] British Columbia was not the first province to enact such a statute. Manitoba did so by c. 5 of the Statutes of 1937-38 and Ontario did so by c. 6 of its Act of 1939: see (1940) 18 Can. Bar Rev. 69. The British Columbia Act differed from the Ontario Act in one significant aspect. The Ontario Act required the applicant to obtain an order for the change of name from a judge. The British Columbia Act gave the power to the Director of Vital Statistics. For an example of an application under the Ontario Act, see Re Rezek or Rennie, [1947] O.W.N. 21 (Co. Ct.).
[50] The power of the director was expressed thus in the British Columbia Act of 1940:
7. (1) On receipt of an application and of the documents required to be filed therewith, the Director shall, if he is satisfied that the proposed change is authorized by this Act, register the change of name; but if the Director is not satisfied that the proposed change is authorized by this Act he shall refuse to register the change of name and shall so notify the applicant.
(2) If the Director refuses to register any change of name, the applicant may, within thirty days after receipt of notification of the refusal, appeal against the refusal to a Judge of the Supreme Court in Chambers. The Judge may hear evidence and shall dispose of the appeal in a summary manner and may make such order as he thinks proper. The appellant shall serve notice of the appeal on the Director not less than five days before the hearing thereof.
[51] As to what was going on in Ontario, see M.A. Catzman, "Changing One's Name in Ontario" (1961) 19 Toronto L. Rev. 103 at 107-108:
Unfortunately, the proceedings in the Legislative Assembly of Ontario were not printed in 1939, so that the only available information as to the intention of the Legislature is that obtainable from press clippings, such as the following article, which appeared in The Globe & Mail on April 20, 1939:
"WOULD RESTRICT ALIENS IN CHANGE OF NAMES"
Aliens residing in Ontario will be restricted in the changing of their names under the terms of a bill sponsored by H. L. Hagey (Lib. Brantford) which was approved by the Legal Bills Committee of the Legislature yesterday. The measure, if approved by the House, will do away with the present method of changing names by poll deed.
Mr. Hagey told the committee the bill was designed to prevent the changing of names "to create a false impression," and pointed out that the new act would make it possible for persons opposing such a change to voice their opposition before a judge when application for change was being heard.
Application for a change of name must be made before a county judge, following publication of notice of intention in the press once a week for three weeks. Notice of intention also has to be served on the Attorney-General and a declaration as to place of birth, residence and criminal record, if any, must also be made."
The intention of the Legislature is disclosed more bluntly in a sympathetic commentary on the Act in the Fortnightly Law Journal [The Change of Name Act, 1939, 16 Fort. L.J. 136-137 (1946)]:
"Are we out of order in suggesting that the real reason behind most of these changes of name applications is the applicant's desire to pass himself as something he is not, namely a person of indigenous racial descent and ancestry, and so not liable to be the object of any real or fancied discrimination as a 'foreigner'?....And is the court to be asked to sanction that course of conduct with its benison? ... There is another very important element to be considered-the preservation of race values... To construe the Act in any other way than the one we have indicated is to take the side of mongrelism which science deplores, and which our experience condemns because of its destruction of good blood lines and values."
It is significant that these views were penned [1946] little more than a year after an epochal struggle had been won against a totalitarianism that espoused a strikingly similar racist and genetic philosophy; and it indeed is a pity that such an impassioned plea was not reserved for a worthier cause than unabashed snob appeal.
[52] The learned author commented further, at 109, 110:
It does appear that the learned Judge, in failing to recognize that the rigour of the Act supersedes the lenience of the prior common law, benevolently misconstrued its intent and established a jurisprudence which frustrated its purpose.
* * *
In this respect the common law was more equitable and realistic. The general rule that a person could assume any name he pleased was subject to two exceptions; that the name was not assumed for any fraudulent purposes, and that the name was not assumed so as to inflict pecuniary loss on another. Accordingly, it is submitted that the Change of Name Act is inconsonant with the spirit of our times and should be repealed. This would restore the common law, which was both just and salutary.
[Unless he has changed his name, the author of this article is now a judge of the Court of Appeal of Ontario.]
[53] I have been unable to discover whether the purpose of s. 3 of the British Columbia Act was the snob appeal which is ascribed to the Ontario Act. As to s. 13, which is derived from the Ontario Act, I suspect it may have had something to do with, in Ontario, the impending threat of war, and, in British Columbia, war having broken out, and was to prevent those who might be or appear to be enemy aliens from hiding their origin.
[54] I am unable to say how many persons gave notice under s. 13. No such section appears in the present Act.
[55] It is interesting to note that in the year following the enactment of the Change of Name Act, approximately 140 applications were made of which a substantial number were to change from continental names to names which sounded as if they had come from some part of what were then known as the British Isles. See B.C. Gaz. 1941.I.vii-viii, and the applications and certificates therein indexed. A random sample of those applications (the B.C. Gazette of 16th October, 1941), listed six certificates of change of name, four of which were to names which did not sound "foreign", e.g. Bueckert to Bickert.
[56] In 1957, a new Adoption Act was passed, S.B.C. 1957, c. 1, which profoundly affected the position of adopted children. The critical sections were:
9. (1) If the Court is satisfied of the ability of the petitioner to bring up, maintain, and educate the child properly, and of the propriety of the adoption, having regard to the welfare of the child and the interest of the child's parents, the Court may, subject to sections 6, 7, and 8, make an order for the adoption of the child by the petitioner; and if the Court is not so satisfied, the Court may direct the Superintendent to take such action as is necessary to protect and provide for the child.
(2) An adopted child shall have such Christian or given name or names as the Court specifies in the adoption order, and shall assume the surname of his adopting parents unless the Court otherwise orders.
(3) The adoption order takes effect when pronounced, and, notwithstanding the provisions of the "Court of Appeal Act", the period within which an appeal may be brought shall be calculated from the time when the order is pronounced.
(4) If the child has no parent living and no guardian can be found who has the lawful custody of the child, these facts shall be recited in the adoption order.
(5) The fact of illegitimacy shall not be referred to in the adoption order.
(6) An adoption order made with respect to an illegitimate child is not affected in any way by the subsequent marriage of the natural parents to each other.
10. (1) For all purposes an adopted child becomes upon adoption the child of the adopting parent, and the adopting parent becomes the parent of the child, as if the child had been born to that parent in lawful wedlock.
(2) For all purposes an adopted child ceases upon adoption to be the child of his existing parents (whether his natural parents or his adopting parents under a previous adoption), and the existing parents of the adopted child cease to be his parents.
(3) The relationship to one another of all persons (whether the adopted person, the adopting parents, the natural parents, or any other persons) shall be determined in accordance with subsections (1) and (2).
(4) Subsections (2) and (3) do not apply, for the purposes of the laws relating to incest and to the prohibited degrees of marriage, to remove any persons from a relationship in consanguinity which, but for this section, would have existed between them.
(5) This section is to be read subject to the provisions of any Act which distinguishes in any way between persons related by adoption and persons not so related.
(6) This section does not apply to the will of a testator dying before or to any other instrument made before the seventeenth day of April, 1920.
(7) This section applies to adoptions made by the Court or by the Provincial Secretary under legislation heretofore in force.
[57] Thus, at a stroke, the Legislature dissolved the ties of blood between an adopted child and his natural family and imposed upon the kin of the adopting parents someone who was not of their blood as if he or she were. Whether there were any children deprived of substantial rights of inheritance by the repeal of s. 8(2) of the Act of 1920, I do not know.
[58] We now know that many adopted children did not, and do not, appreciate this no doubt well meant legislative destruction of the ties of kinship.
[59] In 1985 the Legislature enacted what it called the Charter of Rights Amendments Act, 1985, S.B.C. 1985, c. 68, which, inter alia, repealed the Legitimacy Act, R.S.B.C. 1979, c. 232, and amended the Law and Equity Act, R.S.B.C. 1979, c. 224, by adding to it as s. 56:
[60] One result of the 1985 Charter of Rights Amendment Act is that children born out of wedlock have the same rights of inheritance under the intestate succession provisions of the Estate Administration Act from their paternal kin as children born in wedlock. Thus, if the petitioner here should die without a will and leave an estate, these triplets will inherit from him. With the advent of DNA as a means of establishing paternity, this legislation, coupled with certain other social changes, may some day lead to claims being made against estates by persons of whose very existence the deceased's acknowledged family and, indeed, the deceased himself, were unaware.
[61] Then, I suppose to carry out further the policy of the amendment to the Law and Equity Act, the Legislature enacted in 1987 the Vital Statistics Act, sections to which I have already referred, sections which give no more rights to the father of a child married to the child's mother than are given to a wanton seducer.
[62] In 1995, by S.B.C. 1995, c. 48, now R.S.B.C. 1996, c. 5, the Legislature attempted to undo, at least in part, the Adoption Act of 1957 by a fasciculus of sections, "Openness and Disclosure", which I need not quote.
[63] To end this recital of the shift in legislative values in this Province since its founding, I infer, not only from the changes to these statutes, but also from changes to the Family Relations Act since it was first enacted in 1978 (S.B.C. 1978, c. 20), that the Legislature of British Columbia no longer considers that marriage, in the classic sense of a union carried out according to usages prescribed by law of one man and one woman, a union which conferred a status with concomitant rights on the parties, their issue and their kin, is a social institution of paramount or, indeed, any importance. Whether the people of British Columbia generally understand that this is what the Legislature has accomplished, whether by accident or design, is an interesting question.
[64] Whether this legislative policy is a good thing or a bad thing is not for a judge to say, but it bears on the arguments which have been made by the appellant in this case.
THE INTERPRETATION OF SECTION 3 OF THE VITAL STATISTICS ACT
[65] The appellant suggested during argument that he had a right to complete the birth registration because he is not "unacknowledged by or unknown to the mother" within s. 3(1)(b) of the Act.
[66] That is an attractive submission because, if accepted, it would preserve a right in husbands as well as give a right to men in the appellant's position to have their names on the birth certificates of their offspring.
[67] But I cannot accept it. In my opinion, the section taken as a whole means that the choice of whether a father's name is to be on a birth certificate is wholly that of the mother. She is under no obligation to acknowledge paternity and she is under no obligation to give her child the father's surname.
[68] In achieving its apparent purpose of remedying whatever lingering stigma attached to being a child born out of wedlock - and for myself I do not think there has been any such stigma in this Province for many decades - the Legislature has deprived the father of children born in wedlock of his right, going back to 1872, to be acknowledged and registered as such.
[69] The appellant is in no worse legal position than any other father.
THE PARENS PATRIAE ARGUMENT
[70] The appellant says there is a "gap" in the Vital Statistics Act which the court, in the exercise of its parens patriae jurisdiction, can fill. That gap, he says, is the absence of a right of appeal from a decision of the Registrar under s. 29. He relies particularly on Beson v. Newfoundland (Director of Child Welfare), supra, in which what was at issue was the decision of the Director of Child Welfare to take a child who had been placed for adoption with one couple from that couple and place him for adoption with another couple. The original couple began proceedings by way of habeas corpus to recover the child.
[71] The Supreme Court of Canada held that the absence of a right of appeal from the Director was a legislative "gap" enabling the court to exercise its parens patriae jurisdiction.
[72] In effect constituting itself a court of first instance, it thereupon made a full inquiry into the best interests of this child and held that the best interests of the child required it to be returned to the original couple and ordered accordingly.
[73] Counsel for the appellant is, of course, quite right when he asserts that, in exercising the parens patriae jurisdiction (the origins of which are addressed in Re Eve, [1986] 2 S.C.R. 388), the court must consider what is in the best interests of the child, and see Barnardo v. McHugh, supra.
[74] Whether a question of what surname a child shall bear is a matter to be addressed under the rubric "child's best interests" - in contradistinction to a parent's interests - is an open question in this Province which need not be decided in this case. The English Court of Appeal has considered in a series of cases concerning legitimate children whose parents had divorced that the question is one of "the best interests of the child". See D. v. B., [1979] 1 All E.R. 92 (C.A.); W. v. A., [1981] 1 All E.R. 100 (C.A.); and Dawson v. Wearmouth, [1998] 1 All E.R. 271 (C.A.). (This list is not intended to be exhaustive.)
[75] But those cases did not arise on a proceeding for judicial review of an administrative decision such as that in issue here.
[76] In my opinion, the Legislature has left no "gap" in this question of a child's name and surname. It has decreed that fathers have no rights. The Act is clear and the Registrar has committed no error. There being no "gap" "best interests" does not arise.
THE ARGUMENT FOUNDED ON SECTION 15 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
[77] These are the relevant sections of the Canadian Charter of Rights and Freedoms:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
* * *
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical ability.
[78] I do not find it easy to fit this argument into s. 15 of the Charter of Rights and Freedoms simply because s. 3 of the Vital Statistics Act, as I have already said, takes away the "right" of a father of children born of his marriage to their mother to have his children bear his name and puts the fathers of children born out of wedlock in no worse position than they were from 1872-1987.
[79] I have put the word "right" in inverted commas because there was no right written in the statute books concerning the names of children born in wedlock. There was simply a custom which came to British Columbia with the settlers.
[80] Thus, the appellant, as a matter of law, is not situated differently from any other father. I appreciate that, in a practical sense, he may be, for, at least up to the present time, mothers of children born in wedlock or in a "common law relationship" generally join with the father in registering the birth.
[81] In this context, by "common law relationship", I mean a heterosexual relationship falling within the extended definition of the word "spouse" in the Family Relations Act.
[82] It can be argued that this legislation is unconstitutional because it discriminates against all fathers. From that proposition, one can develop an argument that the court should omit some of the words in s. 3 and put in other words so that every man who can prove his paternity has a right to be on the birth certificate and have the child bear his name.
[83] But, with respect, I consider that that is going far beyond any of the authorities on s. 15.
[84] There is nothing in the evidence in this case to persuade me that the benefits to fathers of such judicial statute revision would not be thought, by many mothers and would-be mothers, especially those who have deliberately chosen to be single mothers, to be a serious diminution of their rights - to constitute "discrimination" against them.
[85] To this, I add that, since writing these reasons, I have had the privilege of reading in draft the reasons of my colleague, Madam Justice Newbury. I agree with paragraphs 176-179 of her reasons. I neither agree nor disagree with her s. 1 analysis, simply because I cannot accept that the statutory provision here in issue gives rise to any issue of "discrimination" within s. 15 and, therefore, the question of what is justifiable in a free and democratic society does not arise.
[86] I would dismiss this appeal.
"THE HONOURABLE MADAM JUSTICE SOUTHIN"
___________________________________________________________________________________
Reasons for Judgment of the Honourable Madam Justice Prowse:
INTRODUCTION
[87] I have had the privilege of reading, in draft form, the reasons for judgment of Madam Justice Southin. I adopt her description of the factual and procedural background giving rise to this appeal.
[88] I also agree with Madam Justice Southin (and with the trial judge) that mandamus will not lie to compel the Director of Vital Statistics (the "Director") either to register Mr. Trociuk as the father of these three children, or to register the children under the joint and hyphenated surnames of their parents.
[89] I further agree with Madam Justice Southin (and with the trial judge) that there is no "gap" in the legislation, in the sense that expression is used in such cases as Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716, which would permit this Court to give Mr. Trociuk the relief he seeks utilizing the parens patriae power of the court.
[90] Unlike Madam Justice Southin, however, I am satisfied that Mr. Trociuk has established that ss. 3(1)(b) and 3(6)(b) of the Vital Statistics Act, R.S.B.C. 1996, c. 479 (the "Act"), violate s. 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter") insofar as they grant the mother of a child the unfettered power to refuse to acknowledge the biological father of a child on the birth registration form, and thereby preclude him, amongst other things, from participating in choosing the surname of the child under s. 4 of the Act. I am also satisfied that these provisions cannot be saved under s. 1 of the Charter.
[91] It is arguable that these sections also violate the rights and best interests of children by depriving them of benefits which could flow to them by sharing their biological father's surname. Given my conclusion with respect to s. 15 of the Charter in relation to the father, however, it is not necessary for me to resolve that issue on this appeal.
LEGISLATIVE HISTORY
[92] Before turning to the issue under s. 15 of the Charter, I will deal with Mr. Trociuk's submissions with respect to mandamus and his proposed use of the parens patriae power to fill in an alleged legislative gap in the Act. In so doing, I find it useful to comment on some of the legislative history of the provisions in issue.
[93] As noted by Madam Justice Southin at para. 38 of her reasons, the predecessor to the Vital Statistics Act in British Columbia was the Births, Deaths and Marriages Act, S.B.C. 1872, c. 13. Section 5 of that Act placed the primary responsibility for registering the birth of a (legitimate) child on the father or, in the case of his death or absence, on the mother. The particulars of birth required under the Act were set out in Schedule A and included the name and surname of the father and the name and maiden surname of the mother. In the case of a child born to an unmarried mother, the provision for registration was contained in s. 6:
6. In registering the birth of an illegitimate child, it shall not be lawful for the name of any person to be entered as the father, unless at the joint request of the mother and of the person acknowledging himself to be the father; . . .
[94] There was provision in that Act (s. 12) for correcting an "error" in the entry within one year and, if the Registrar were satisfied, following inquiry, that there was an error, he could "correct the erroneous entry, according to the truth of the case, . . ."
[95] The Births, Deaths and Marriages Registration Act of 1897, c. 33, continued to place primary responsibility for the registration of the birth of a legitimate child on the father and specifically placed responsibility for the registration of the birth of an illegitimate child on the mother. As in the earlier legislation, the particulars of the father of an illegitimate child were not included unless "at the joint request of the mother and of the person acknowledging himself to be the father." These provisions, including the provision for correcting errors, remained essentially the same through revisions to the Act in 1913. At that time, the name of the Act was changed to the Vital Statistics Act, 1913, c. 81, and an additional provision (s. 19) was included in the Act relating to changes in the name of the child.
[96] In 1921, the Act was amended to provide that where the birth of an illegitimate child had been registered and the parents of the child had subsequently married, then, "upon the filing by the parents of evidence satisfactory to the Registrar of the legitimation, the Registrar shall cause such marginal alterations to be made in the proper district register as are necessary to show the legitimation of the child and the names of its parents."
[97] In the 1924 Revised Statutes of British Columbia, c. 268, the Act provides for the first time that the "father or the mother of the child" should effect the registration of a child's birth where the parents were married. The prohibition against registering the particulars of the father of an illegitimate child continued unless at the joint request of the mother and the father. The same provisions for changing the name of the child and for correcting errors in the registration also continued.
[98] Amendments to the Act in 1931, 1933, 1936, 1945, 1948 and 1960 continued to provide for the father or mother of a child to register the child's birth. The 1945 amendments included provisions for a change of name as a result of the provisions of an act in any other province, or of a court order. This was subsequent to the enactment in 1940 of the Change of Name Act, S.B.C. 1940, c. 3. The relevant provisions of that Act are set out at para. 48 of Madam Justice Southin's reasons.
[99] In 1962, for the first time, the Act gave primary responsibility for the registration of the birth of a legitimate child to the mother. If the mother was incapable, then the responsibility passed to the father (s. 4(2)(b)), although there was no responsibility on a father who was not married to the mother (s. 4(4)). The 1962 Act also provided for the naming of children in much greater detail than did earlier Acts.
[100] In amendments to the Act in 1987, the present wording was adopted with respect to registering the birth of a child and providing for the surname of the child. Although s. 3(1)(a) of the Act purported to give the responsibility for registering the birth of a child to the mother and father of the child, s. 3(1)(b) gave the right solely to the mother "if the father is incapable or is unacknowledged by or unknown to the mother." Subsection 3(5) provided that a statement could only contain the particulars of the father if the father made the registration statement.
[101] The amendments made to the legislation in 1987 followed the enactment of the Charter of Rights Amendments Act, 1985, S.B.C. 1985, c. 68, the consequent repeal of the Legitimacy Act, R.S.B.C. 1979, c. 232, and the amendment to the Law and Equity Act, R.S.B.C. 1979, c. 224, by the addition of s. 56, referred to at para. 59 of Madam Justice Southin's reasons. One of the effects of these legislative changes was to remove almost all legal distinctions which had previously existed between children of married and unmarried parents.
[102] The 1987 amendments to the Vital Statistics Act were enacted as a result of recommendations by the Uniform Law Conference of Canada. An earlier report to that body in 1983 stated that: "The first question for policy consideration is whether the prime obligation to report the birth should rest with the mother of the child or whether this obligation should be placed jointly on the mother and the father." The report noted that it was necessary to be conscious of recent developments culminating in the Charter "which point to equality between the sexes." Under the heading, "Name of the Child", the 1983 report said: "This is the method of identifying the child whose birth has been registered and is perhaps the most politically sensitive part of the Act." Thus, the issues before the Court on this appeal were identified as problematic by those considering changes to the legislation at that time. In the result, the 1987 amendments were enacted. There have not been any substantial changes to the Act relevant to the issues before us since that time.
[103] In summary, the early versions of the Act gave primary responsibility for the registration of a live birth to the father where the parents were married, and to the mother where they were not. It appears from the forms used, and "by inheritance", that the surname of the children would be the surname of the father where the parents were married and the surname of the mother where they were not.
[104] In subsequent legislation, either the father or the mother of the child was responsible for registering the child's birth where the parents were married. If the parents were unmarried, the mother was responsible, except where the father joined with her in the registration.
[105] In 1962, for reasons which are not apparent, the right (or primary responsibility) for registration of a child's birth was given solely to the mother, unless she was "incapable." The obligation on an unmarried mother remained unchanged. A father not married to the mother could only be mentioned in the registration documents if he joined in the registration with her. The surname of the child continued to be the surname of the father if the parents were married, and the surname of the mother, or of a father who joined with the mother in registration of the child, if they were not married. The provisions for naming the child were set out in much greater detail.
[106] In 1987, the responsibility for registering the child's birth became that of the father and the mother. The mother, however, was given the sole right to register the child, not only where the father was incapable of acting, but also where the father was "unknown" or "unacknowledged" by the mother. Further, if the mother alone registered the birth, she had the right to choose the child's surname. In that respect, married fathers were denied their historical right to have their children bear their surname and were relegated to the same position as unmarried fathers. This remains the situation under the present legislation.
[107] It is apparent from reviewing the legislative history of the Vital Statistics Act that the naming of children under the Act assumed increasing importance over time. This was the case even after the Change of Name Act was first introduced in 1940. The Vital Statistics Act, R.S.B.C. 1996, c. 479, and the Name Act, R.S.B.C. 1996, c. 328, must be read together, therefore, to obtain a complete picture of how names are registered and changed in this province.
[108] Against this legislative background, which supplements that provided by Madam Justice Southin in her reasons, I now turn to the issues of "mandamus" and "legislative gap."
MANDAMUS
[109] Mr. Trociuk's submission with respect to mandamus rests primarily upon his suggested interpretation of s. 3 and s. 29(4) of the Act, which provide, in part:
. . .
(3) If the statement is made by a person under subsection (1)(b), (c) or (d), the person making the statement must make and submit with the statement an affidavit setting out the facts that require the statement to be made by the declarant.
. . .
(5) A statement must contain particulars of the mother and, if the father makes the statement, particulars of the father.
(6) If a statement completed by only one parent of the child or by a person who is not the child's parent is registered, the director must alter the registration of birth on application of any of the following persons:
(a) the child's mother and father together;
(b) the child's mother, if the father is incapable or is unacknowledged by or unknown to the mother;
(c) the child's father, if the mother is incapable.
* * *
[29] (4) If after a registration has been filed by the director, it is reported to the director that an error or omission exists in the registration, the director must inquire into the matter, and may correct the error or omission on production of evidence of the error or omission satisfactory to the director verified by affidavit and on payment of the prescribed fee.
[110] Mr. Trociuk submits that the children should have been jointly registered by Ms. Ernst and himself under s. 3(1)(a) of the Act. Instead, Ms. Ernst unilaterally registered the children under s. 3(1)(b) by providing on the requisite form that the father of the children was "unacknowledged by . . . the mother." The reason she gave on the form for not acknowledging Mr. Trociuk is "Mother and Father are not together."
[111] Mr. Trociuk submits that he has at all times been "acknowledged" by the mother as the children's father. It follows, he submits, that the mother's reference to him on the birth registrations of the children as "unacknowledged" is either an "error" or an "omission" within the meaning of s. 29(4). Mr. Trociuk submits that he has established this error or omission in material provided to the Director and that the Director has wrongfully refused to change the registration and the children's surnames accordingly.
[112] A similar argument advanced on behalf of the father of a child was accepted by the court in Herrington v. Green (1999), 178 D.L.R. (4th) 568 (B.C.S.C.). In that case, the parents of the child were married, but had separated by the time the child was born. The mother registered the child under s. 3(1)(b) of the Act and referred to the father on the requisite form as being "unacknowledged." The father provided evidence that prior to the registration of the child, the mother had acknowledged that he was the father of the child. He submitted that the mother's reference to him as "unacknowledged" was an "error or omission" within the meaning of s. 29(4) of the Act.
[113] The trial judge in Herrington accepted this submission. She distinguished the trial decision in Trociuk (reported at (1999), 67 B.C.L.R. (3d) 389) on the basis that the mother had not acknowledged Mr. Trociuk as the father prior to registration. (I note that her conclusion in that regard does not appear to accord with the evidence in this case.) The trial judge in Herrington found that the mother's acknowledgement of the father was not restricted to acknowledgement under the Act but referred to any form of acknowledgement of the father by the mother prior to registration. Because the mother had acknowledged Mr. Herrington prior to registration, her reference to him on the registration as "unacknowledged" constituted a deliberate misstatement which amounted to an "omission" which could, and should, be corrected by the Director under s. 29(4). (In coming to this conclusion, the trial judge relied on dictionary definitions of the word "omission.") The trial judge dismissed the father's action only because he had not pursued his remedies under the Act prior to bringing his action. She rejected a separate argument that there was a "gap" in the legislation which the court could ameliorate through its parens patriae power.
[114] The trial judge's conclusions in Herrington are summarized at para. 35 of her judgment as follows:
[115] With respect, I am not persuaded that the words "unacknowledged by . . . the mother" in ss. 3(1)(b) and 3(6)(b) of the Act, refer only to situations in which the mother of a child has not acknowledged the identity of the father prior to the registration of the child. In my view, the only acknowledgement, or lack thereof, to which the Act is referring in that subparagraph is acknowledgment, or lack of acknowledgement, under the Act.
[116] I am unable to agree that simply because a mother has identified a person as the father of the child at some time prior to the registration of the child, she is precluded from referring to the father on the birth registration form as "unacknowledged." The Act distinguishes between fathers who are "unknown" and fathers who are "unacknowledged." It is clear that a father whose identity is known may be "unacknowledged" under s. 3(1)(b) of the Act.
[117] The Director has pointed to several circumstances in which a mother may not wish to acknowledge the father for registration purposes: for example, where the child is conceived as a result of a sexual assault, through incest, or in circumstances in which the father has been otherwise abusive to the mother. In completing the birth registration, the mother is required to give her reason for refusing to acknowledge the father and there is no provision for challenging her decision in that regard. Her intentional refusal to acknowledge the father, which is expressly provided for in the Act, cannot reasonably be interpreted as an "error" or "omission" within the meaning of s. 29(4). She has done what the Act permits her to do and she has done it intentionally.
[118] In summary, while I recognize the potential unfairness which may arise where a mother acknowledges the father of a child for some purposes (for social reasons, or to obtain child support) but not for others (such as registering and naming the child), I am unable to find that a mother's designation of a father under the Act as "unacknowledged by . . . the mother" is an "omission" within the meaning of s. 29(4) of the Act. In my view, an "omission" within the meaning of s. 29(4) means something that is inadvertently or accidentally excluded from the registration; not something that the mother intentionally chose to exclude. Nor is an intentional refusal to include the father's particulars an error, in the sense of a mistake. Rather, it is apparent that the Legislature has chosen to give the mother the sole power to acknowledge or refuse to acknowledge the father under s. 3 of the Act.
[119] Thus, with respect, I conclude that Herrington was wrongly decided. To the extent there is a remedy for a father who has acknowledged the child as his own, but who has not been acknowledged by the mother under the Act, it is not found in s. 29(4).
LEGISLATIVE GAP
[120] In my view, Mr. Trociuk's argument that there is a "legislative gap" in the Act which the Court should fill by providing a right of appeal to those in a similar position to Mr. Trociuk (or Mr. Herrington) must fail for similar reasons. The gap in the legislation is said to be the absence of an appeal procedure which would permit willing fathers to appeal the mother's refusal to acknowledge them under the Act, thereby depriving them of their ability to jointly register the child and participate in the naming of the child in accordance with the Act.
[121] As stated at the outset of these reasons, I agree with Madam Justice Southin, and with the trial judge, that there is no legislative gap as asserted by Mr. Trociuk. Rather, the Legislature has made a clear choice to give the mother of a child the power to refuse to acknowledge the father of the child for the purposes of registration under the Act. (See also O'Driscoll v. McLeod (1986), 10 B.C.L.R. (2d) 108 (B.C.Co.Ct) where Madam Justice Huddart, as she then was, rejected a similar argument.) It is not for the courts to override the clear intention of the Legislature on the pretext of finding a "gap" in the legislation.
[122] The evidence of the Director supports the conclusion that the decision to give mothers the right to determine whether to acknowledge the father on the registration under s. 3(1)(b) was a positive choice made by the Legislature and not an oversight. That evidence is set out at para. 18 of the reasons of Madam Justice Southin. The suggestion in those paragraphs is that it is necessary to leave the decision as to the particulars of registration to the mother in order to ensure accurate and timely reporting of live births in the province. To either force the mother to acknowledge the father, where known, or to permit the father to assert himself into the process, is said by the Director to be adding complexities, if not an increased margin of error, to the reporting of what is submitted to be essentially a matter of statistics-gathering. I will deal further with this submission in my discussion of the s. 15 argument raised by Mr. Trociuk.
[123] In the result, I reject Mr. Trociuk's submission that there is a legislative gap which the court can fill through use of its parens patriae power to provide Mr. Trociuk with a remedy.
[124] I now turn to Mr. Trociuk's submission under s. 15 of the Charter.
SECTION 15 OF THE CHARTER
[125] Counsel for the respondents submit that it is unnecessary to do a s. 15 analysis since the mother has indicated that she is now willing to join with Mr. Trociuk in registering his particulars under s. 3(6)(a) of the Act. This is of little comfort to Mr. Trociuk, however, since the Director has made it clear to him that he will not change the surnames of the children under the Act from the surname of the mother to the joint and hyphenated surnames of the mother and father. Further, the mother's belated willingness to acknowledge Mr. Trociuk as the father under the Act in no way answers the equality issues arising from these provisions. In that regard, it is important to emphasize that this case is not simply about Mr. Trociuk and his rights, or lack thereof, under the impugned provisions of the Act. The implications of this decision extend to all fathers and their children. For these reasons, I propose to undertake a s. 15 analysis.
[126] As earlier stated, Mr. Trociuk, supported in this regard by the amicus curiae, submits that ss. 3(1)(b) and ss. 3(6)(b) of the Act violate s. 15(1) of the Charter in that they grant to the mothers of children born in British Columbia the complete and unfettered discretion to refuse to acknowledge their children's biological fathers on the birth registration forms, and the complete and unfettered power to determine the surname of their children. Both counsel submit that these provisions cannot be saved under s. 1 of the Charter.
[127] The trial judge found that, even if these provisions discriminated against fathers under s. 15(1) of the Charter, they were saved by s. 1.
[128] Madam Justice Southin declined to interfere with the trial judge's conclusion in that regard. She noted that the s. 15 Charter argument raised on this appeal does not readily fit the mould of other cases decided under s. 15 of the Charter.
[129] The question, nonetheless, remains whether the impugned provisions result in discrimination within the meaning of s. 15(1) of the Charter which cannot be justified under s. 1, and, if so, what is the appropriate remedy.
[130] Section 15 of the Charter provides:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[131] Section 1, in turn, provides:
[132] The case which I find most useful in approaching this analysis is Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. There, Mr. Justice Iacobucci, speaking for the court, set out "guidelines" for a s. 15 analysis, to be applied in a "purposive" and "contextual" manner to the claim before the court.
[133] It is difficult to do justice to the guidelines set forth by Mr. Justice Iacobucci in Law without quoting them at length. I will begin, however, by referring to the purpose of s. 15(1), summarized by Iacobucci J. at para. 88(4) of his reasons:
(4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
[134] Bearing this purpose in mind, I turn to the summary of the starting point for a s. 15 analysis, set forth by Iacobucci J. at para. 88(2) of the Law decision:
[135] In this case, it is not disputed that the law imposes differential treatment on mothers and fathers of children in terms of their rights to participate in the registration of their children's births and the naming of their children which flows from such registration. It is also not disputed that the differential treatment accorded mothers and fathers under the legislation is based on sex, an enumerated ground. Finally, it is not disputed that the differential treatment is found, not in the purpose of the legislative provisions, but in their effect.
[136] The effect of these provisions is to deny fathers designated as "unacknowledged", whether married to the mother or not, the right to participate in the registration of their children's births and to participate in choosing their surnames. Thus, for example, fathers who are willing to participate in their children's lives by providing financial and emotional support are excluded from the registration and naming process to the same extent as fathers who were little more than "sperm donors", or who impregnated the mother as a result of a sexual assault or incest or in the course of an abusive relationship.
[137] Counsel for the Director suggested during the course of argument that birth registration and naming under the Act are essentially administrative matters of a statistical nature which are not of sufficient importance to attract a s. 15 analysis. In effect, he submitted that to the extent fathers were being denied a "right" as a result of the impugned provisions, it was a relatively insignificant right, the recognition of which would trivialize s. 15 of the Charter. I understood his argument on this point to be that the differential treatment accorded mothers and fathers under these provisions does not amount to discrimination "in the substantive sense intended by s. 15(1)" to use the words of Mr. Justice Iacobucci in Law, supra.
[138] I have no doubt that there are some members of Canadian society who would not regard the differential treatment accorded men and women in the registration and naming of a child under the Act to be a significant matter. I am also satisfied, however, that the recognition of the birth and the naming of a child hold great significance for countless families within our multi-cultural society. In many cases, the birth and naming of a child are the occasion of great ceremony involving the gathering together of family and friends. Frequently, these ceremonies have a strong religious and/or cultural component.
[139] In many other cases, the naming of a child is a matter of family pride and honour associated with passing on, not only the family name or names, but also the family heritage from one generation to the next. Whereas formerly this tradition was male-dominated, in the sense that the family name passed on was almost invariably that of the father, s. 4 of the Act now permits the parents to pass on both maternal and paternal surnames and their associated heritage. Choosing a surname, therefore, has become a means of providing the child with the heritage of both sides of the family.
[140] For those who view the concept of family heritage as a reflection of outdated or elitist sentiments, the Act permits the parents to choose a surname different from that of the parents. For others, the naming of a child may be viewed as an expression of individuality or dissociation from the past, and a matter of some importance for those reasons.
[141] Apart from these considerations, there are other important practical implications which flow from the registration of births under the Act. For example, a father who is named on the birth registration must be given notice of the proposed adoption of his child. He may, or may not, qualify for notice apart from registration. (See s. 13 of the Adoption Act, R.S.B.C. 1996, c. 5.) Further, a person who has been adopted now has access to adoption records to seek out his or her birth parents. The absence of the father's particulars on the birth registration may thwart that process. In the most extreme scenario, this could result in siblings or near relatives unwittingly forming a relationship which is prohibited by the ties of consanguinity.
[142] The presence of the father's particulars on the birth registration may also make it easier for health care professionals to track a child's medical background in the event that the child becomes ill or requires serious medical treatment and the mother is unavailable for consultation.
[143] Considering all of these factors (not all of which may be accorded equal weight), can it be said that the potential exclusion of fathers from the birth registration and naming process at the discretion of the mother is an insignificant matter, not worthy of Charter scrutiny? In my view, the answer to this question is "no." Utilizing the language of Law, I conclude that the differential treatment of mothers and fathers under these provisions withholds a benefit from fathers in a manner which has the effect of signalling to them and to society as a whole that fathers are less capable or less worthy of recognition or value than mothers, and that they are not regarded as being equally deserving of concern, respect and consideration.
[144] I come to this conclusion even though fathers (and men generally) have not been a historically disadvantaged group in our society. It is clear from Law, and other s. 15 cases, that membership in a historically disadvantaged group is not a precondition to a successful s. 15 challenge if the other elements of discriminatory treatment are established.
[145] With a view to assessing the significance of the equality issue at stake here, I suggested to counsel for the Director that he might not take the same position with respect to the alleged trivial nature of the birth registration and naming process if it were the father who was given the sole rights in that regard, rather than the mother. Counsel did not dispute this suggestion. While I acknowledge that the analogy is not perfect because it is mothers who carry and give birth to children, and because women do belong to a historically disadvantaged group, the point is that if these rights are significant to mothers, surely it is reasonable to conclude they are equally significant to fathers.
[146] Based on all of these considerations, I conclude that the impugned provisions are contrary to s. 15(1) of the Charter.
[147] The question then becomes one of determining whether the limitations these provisions impose on the rights of fathers (including Mr. Trociuk) can be reasonably and demonstrably justified in a free and democratic society under s. 1 of the Charter. (The respondents did not seek to justify these provisions under s. 15(2).) The onus of justifying these provisions under s. 1 is on the parties seeking to rely on the limitation - in this case the Director and the Attorney General of British Columbia.
[148] In approaching the s. 1 analysis, it is useful to review the analysis engaged in by the trial judge. He found that the provisions could be upheld on a s. 1 analysis utilizing the three-fold test set out in the leading case of R. v. Oakes, [1986] 1 S.C.R. 103.
[149] In summary, Oakes provides that the party upon whom the onus rests under s. 1 must show that: (1) the objective the provisions are designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; that is, the objective must be "pressing and substantial"; (2) the means chosen to limit the right must be proportional to the objective in that they must be carefully designed to achieve the objective; they must be rationally connected to the objective; and they should impair the right or freedom in question as little as possible; and (3) there must be proportionality between the deleterious effects of the measures and the objective, and between the deleterious and salutary effects of the measures.
[150] The trial judge found that the first test in Oakes, a pressing and substantial objective, was met. At para. 37 of his reasons, he stated:
Here, the objective of the Vital Statistics Act and s. 3 is to encourage accurate and undisputed reporting of information to Vital Statistics regarding live births in B.C. I find that the need to accurately record and track live births in B.C. is a sufficiently pressing and substantial objective to meet this branch of the test.
Mr. Trociuk does not take issue with the trial judge's finding in this regard.
[151] The trial judge also found that the second branch of the Oakes test (proportionality between means and objective) was met. In this regard, he emphasized the evidence of the Director concerning circumstances in which a mother may refuse, or be reluctant, to name the father, such as where the birth resulted from sexual abuse, an assault, incest, or where the parties are no longer in contact. The trial judge accepted the Director's evidence that forcing the mother to name the father in these situations might result in misinformation as to the identity of the father, or in no registration at all.
[152] Under the second branch of the Oakes test, the trial judge also stated that the father could apply to amend or correct the registration under s. 29 to ensure that he was not unfairly or arbitrarily omitted from the register. While he recognized that the Registrar was under no duty under s. 29 to include the particulars of the father upon the father's application, the trial judge felt that this option was one which supported a finding that the means chosen to obtain the objective of accurate reporting minimally impaired the father's rights.
[153] In my view, the trial judge erred in finding that the proportionality test under the second branch of Oakes, including the test of minimal impairment, was met by these provisions. As earlier stated, the mother's refusal to acknowledge the father under s. 3(1)(b) of the Act is not an error or omission under s. 29 of the Act. Further, there is nothing in the Act to circumscribe the circumstances in which a mother can refuse to acknowledge a father whose identity is known to her. She can do so whether or not she is married to or living with the father, and whether or not the father is ready, willing and able to assume parental responsibilities in relation to the child. For example, the mother could refuse to acknowledge the father simply because she does not like his last name, or because she is angry with him, or because her family does not want him to participate in the naming of the children. Or, the mother may view the father as having no rights in relation to the child, but only responsibilities, such as the responsibility to pay support. In effect, the impugned provisions permit the mother to become the ultimate arbiter of the rights of the father in relation to registration and naming of children.
[154] I accept that there are valid reasons which justify a provision similar to s. 3(1)(b) to permit a mother to refuse to acknowledge the father of a child in certain circumstances, including those listed by the Director. I do not accept, however, that the mother should be the sole and final arbiter of whether the father is acknowledged. In my view, ss. 3(1)(b) and 3(6)(b) do not minimally impair the rights of fathers. Rather, they place fathers in the position of Mr. Herrington and Mr. Trociuk in the same position in relation to the registration and naming of their children as fathers who have raped, assaulted, otherwise abused or abandoned the mother.
[155] Section 29 of the Act is of no assistance to fathers in the circumstances of Mr. Trociuk, and there are no other provisions of the Act which provide a remedy to a father whose rights have been adversely affected by the mother's refusal to acknowledge him.
[156] I am prepared to accept that the timely reporting of live births justifies the mother being given the right, in the first instance, to refuse to acknowledge the father. Such a right could be circumscribed, however, by not only requiring the mother to designate her reasons for refusing to acknowledge the father, but by giving the father a right, exercisable within a limited time, to show cause why he should be acknowledged on the birth registration as the father. As the legislation currently stands, the prescribed form requires only that the mother provide a reason for refusing to acknowledge the father, together with an affidavit "setting out the facts that require the statement to be made by the declarant" (s. 3(3)). Thus, the mother can give any reason for refusing to acknowledge the father, and that suffices to exclude the father from the registration and naming process. Her reason could be false (as may be the case, for example, if she is married and the father is someone other than her husband) or it may be completely without objective merit. In that regard, I fail to see how the impugned provisions promote the accuracy of the information contained in the birth records. In my view, providing the father with the right to challenge his exclusion from the registration and naming process would be more likely to deter a mother from providing false or spurious reasons for refusing to acknowledge the father.
[157] Giving a father the right to challenge the mother's refusal to acknowledge him as the father of the child would not interfere with the timely reporting of live births since the mother's registration of birth would stand, subject to the register being amended in the event of a successful challenge to the registration by the father.
[158] In answer to the objection that such a procedure may be cumbersome or may unduly burden the Director, the procedure for challenge could be made to a judge in chambers, based upon affidavit evidence, with the decision of the judge to be final.
[159] While there is a potential risk that such a show cause procedure may permit the father of a child, or a person claiming to be the father, to harass the mother at a time when she is vulnerable, I think it unlikely that there would be a proliferation of applications by fathers designated as "unacknowledged" on the birth registration. The overall number of fathers listed on the registration forms as "unknown" or "unacknowledged" is limited, and, of those listed as "unacknowledged", many, if not most, would likely have no interest in asserting their parental role or assuming the burdens of parenthood. On the other hand, for fathers like Mr. Trociuk and Mr. Herrington, who have indicated a willingness to assume the responsibilities associated with raising their children, the impugned provisions permit a unilateral interference by the mother with rights commonly associated with parenthood. This is a denial of rights which would likely not be tolerated by society if the roles were reversed and it was the mother who was unilaterally excluded from the registration and naming process.
[160] At this point, I note that it is not for the courts to determine the precise means by which the Legislature should seek to achieve its legislative objectives. In most cases it will be sufficient for the court to point out in what respects the means chosen to achieve the objectives are unsupportable under the second branch of the Oakes test. The Legislature can then reconsider the impugned provisions in light of the court's judgment and revise the legislation accordingly.
[161] Although it is not strictly necessary to do so, I will also deal with the third branch of the Oakes test. This was considered by the trial judge at para. 42 of his reasons:
Finally, there must be proportionality between the deleterious effects of the measures responsible for limiting the rights or freedoms in question and the objective of the legislation, and also between the deleterious and salutary effects of the measures (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835). The deleterious effect of the measure in this instance is to require an unacknowledged father to apply for an amendment to the birth registration under s. 29 if he so desires, that he may not be recognized on the birth registration, and that, as a result of his initial exclusion, the child may not carry his name. When measured against the objective of the legislation, to ensure the accurate collection and maintenance of statistics of live births throughout the province, I find that the objective is proportionate with the resulting deleterious effects of this provision. The deleterious and salutary effects of the measures in this Act are also proportionate. The burden of having to apply to have the father's name added is not cumbersome and while the father may face the possibility of remaining unacknowledged, that does not outweigh the benefits of providing the mother with the ability to register without acknowledging the father.
[162] As already stated, s. 29 of the Act does not provide an effective remedy to a father who has not been acknowledged on the birth registration by a mother. I am also not persuaded that the trial judge was alerted to some of the deleterious effects of these provisions to which I have referred earlier in my reasons.
[163] I also note that, while the original purpose of the Act may well have been the timely and accurate reporting of births, deaths and marriages in the province, the Act has been expanded in many respects since its inception. As stated in my discussion of the legislative history of these provisions, that aspect of the Act dealing with the naming of children has been greatly elaborated upon, particularly in the amendments to the Act commencing in 1962. In expanding those provisions, the Legislature has expanded the role which the Act plays beyond one of merely recording live births. If the purpose of the Act were simply to record the number of live births in the province for statistical purposes, the children could be referred to by number, rather than by name. Instead, the Act has set up an elaborate procedure for designating children's surnames, including a mechanism for determining the surname of a child in the event the parents do not agree.
[164] In my view, the salutary effects of ss. 3(1)(b) and 3(6)(b) are outweighed by the deleterious effects to which I have referred. Counsel for the Director did not suggest that it was not possible to circumscribe the mother's right to refuse to acknowledge a father in appropriate circumstances without either undermining the rights or privacy interests of the mother or the objective of timely and accurate reporting. In my view, the show cause procedure which I have described is one method of protecting those interests while giving credence to the fact that fathers also have a legitimate interest in the registration and naming process. As earlier stated, it may well be that such a procedure would operate as a check on the mother's present unfettered right to refuse to acknowledge the father, with the resulting salutary effect of ensuring more accurate and complete registration of live births in the first instance.
[165] Since the impugned provisions do not satisfy the second and third branches of the Oakes test, it follows that they cannot be saved under s. 1 of the Charter.
[166] I now turn to the question of what remedy is appropriate in these circumstances.
[167] One remedy would be simply to read out the words "unacknowledged by or" in ss. 3(1)(b) and 3(6)(b) of the Act. This, however, would leave the legislation susceptible to the problem of inaccurate reporting in the circumstances listed by the Director which the current legislation was intended to alleviate. A second possibility would be to leave these sections as they currently stand and to read in a show cause procedure giving the father a right, to be exercised within a limited time, to challenge the mother's refusal to acknowledge him. In the event the father were successful, the Director would be given the power to amend the registration to register the particulars of the father and to amend the surname of the child to the hyphenated joint surnames of the parents in alphabetical order.
[168] A variation on the first remedy would be to read out the words "unacknowledged by or" in ss. 3(1)(b) and 3(6)(b) but to hold this remedy in abeyance for one year to permit the legislators to draft amendments to the Act to reflect the concerns raised in this judgment. In the meantime, since the mother has now agreed that Mr. Trociuk's particulars should be shown on the registration, I would direct that the birth registrations of the three children be amended to include his particulars. But for the fact that I am writing in dissent, I would also order that the surnames of the children on the birth registration be changed to Ernst-Trociuk as they could have been had Mr. Trociuk been registered as the father in the first instance.
CONCLUSION
[169] I would allow the appeal, declare that ss. 3(1)(b) and 3(6)(b) are contrary to s. 15(1) of the Charter and are not saved under s. 1. I would also direct that the birth registrations of the three children be amended to include Mr. Trociuk's particulars.
[170] Finally, I would grant Mr. Trociuk the costs of this appeal as against the Attorney General and the Director.
"THE HONOURABLE MADAM JUSTICE PROWSE"
___________________________________________________________________________________
Reasons for Judgment of the Honourable Madam Justice Newbury:
[171] I have read the draft reasons for judgment of my colleagues Madam Justice Southin and Madam Justice Prowse, respectively. I will not attempt to add to their review of the historical background of the statutory provisions with which this case is concerned, nor to enter into a lengthy analysis of the rather abstract multi-branched principles that now govern claims under s. 15 of the Canadian Charter of Rights and Freedoms. I do propose, however, to take a closer look at the competing interests raised by this case, which lead me to concur with Southin J.A. that this appeal must be dismissed.
[172] The appeal challenges the regime adopted by the Legislature of British Columbia and other provinces that have adopted the recommendations of the Uniform Law Conference of Canada, about how births and the family names of newborn children are to be registered. Many possible difficulties arise, of course, where both parents do not attend to the registration of the birth of their child and provide a surname on which both agree. In all too many cases the father may not wish to take responsibility for the children. In other cases, of which this is one, the mother may not wish to acknowledge the father's identity, if known, in a public document nor wish the child to carry the father's name. The possible scenarios are unlimited but in many of them, the mother's reasons will be perfectly valid and consistent with the children's interests. This case presents what may be the most common problem - where unmarried parents are separated and the mother expects to raise the child or children solely or largely on her own. Thus the mother in this case deposed:
Later on, when the Petitioner had modified his position to the degree that he was insisting the names should be hyphenated, I felt that there was no reason why the children should bear the last name of somebody that I was not married to and had no plans to set up a life with. I saw no important connection between Darrell's ability to be a good father, if that is what he wanted, and the children bearing his last name. My view was that the children were carried by me, raised by me, and that they should bear my last name. I am prepared that the children should adopt a hyphenated name at that point in their life where they are able to make an independent decision about it, and if Darrell is able to convince them that it is worthwhile. Until then, my position is that they should have my last name. I am their primary care giver, and, despite the Petitioner's protestations to the contrary, he has made very little effort outside of the litigation arena to be part of their lives.
Although Ms. Ernst has, since this litigation was commenced, agreed to include the father's "particulars" on the registration forms, we must decide the case on the facts as they were at the time of registration.
Legal Analysis
[173] The case was argued on the basis solely of the vires of the default provisions, namely, s. 3(1)(b), s. 3(6), and 4(1)(a) of the Vital Statistics Act, R.S.B.C. 1996, c. 479. I quote ss. 3, 4 and 29 in their entirety for purposes of convenience:
[174] The real question raised by this appeal is whether the underlined "default provisions" are a reasonable and demonstrably justified response to the objective of the legislation. However, I propose to make some comments about s. 15 before turning to s. 1 of the Charter. As Prowse J.A. has indicated, the most useful starting point is the recent judgment of the Supreme Court of Canada in Law v. Canada, [1999] 1 S.C.R. 497, a judgment delivered subsequent to the hearing before the Chambers judge in the case at bar. The opinion of Iacobucci J. for the Court summarizes the approach taken to s. 15 by McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. Iacobucci J. noted that Andrews ". . . established that there are three key elements to a discrimination claim under s. 15(1) of the Charter: differential treatment, an enumerated or analogous ground, and discrimination in a substantive sense involving factors such as prejudice, stereotyping, and disadvantage." [para. 30] Some years later, in Egan v. Canada, [1995] 2 S.C.R. 513, a two-step approach was suggested as follows:
The first step is to determine whether, due to a distinction created by the questioned law, a claimant's right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law has been denied. During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics.
Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others. [at paras. 130-1, quoted in Law at para. 32.]
The approaches taken in Andrews and Egan were said in Law to be "essentially alike" although Cory J. in Egan did not advert specifically to factors such as stereotyping, prejudice and historical disadvantage.
[175] Iacobucci J. next observed in Law that various judges of the Supreme Court have also emphasized the necessity of establishing "discrimination in a substantive or purposive sense, beyond mere proof of a distinction on enumerated or analogous grounds." In particular, he noted the comment of McLachlin J. (now C.J.C.) in Miron v. Trudel, [1995] 2 S.C.R. 418, that not every distinction may have the effect of imposing "a real disadvantage in the social and political context of the claim", although, she noted, cases where a distinction made on an enumerated or analogous ground does not amount to discrimination will be rare. (Supra, at 487.) Iacobucci J. in Law suggested the following "synthesis" of the Supreme Court's jurisprudence:
. . . a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purposes of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). [para. 39; emphasis added.]
and further:
All of these statements share several key elements. It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society. [para. 51; emphasis added.]
[176] There is no doubt that the impugned provisions of the Vital Statistics Act in the present case draw a formal distinction, or differentiate, between mothers and fathers of children on the basis of sex, an enumerated ground. I do not agree with the suggestion, however, that the purpose of these provisions was to give a mother the right to refuse to acknowledge the father and thereby to assume the right to register the births of children and choose their surnames. Certainly there was no evidence of debates in the Legislature, or even of the analysis undertaken by the Uniform Law Conference, that would support that inference. It seems to me more likely that the distinction made by the Act between mothers and fathers is the unavoidable result of a balancing process between the interests of mothers, fathers, children, and government. One begins with what counsel concede was the Legislature's overall objective in enacting the registration and naming provisions of the Act - to ensure that live births are recorded accurately and promptly so that the information may be used for a myriad of governmental and statistical purposes. Obviously, the naming of a child should also be carried out promptly, since names are generally how persons are identified for public and private purposes in our society. Obviously as well, the mother of a child is the one parent who can be identified as such at the time of birth. If she chooses to acknowledge the father, no difficulty arises - even if the two parents disagree on the child's surname, the Act resolves their disagreement.
[177] If on the other hand the mother knows the identity of the father but does not wish to acknowledge his paternity, what legislative alternatives exist that are consistent with the objective of prompt and accurate recording? The registration cannot be held in abeyance until a father comes forward and carries out paternity testing, or the mother changes her mind. This would leave the alternative that the mother be required, sooner or later, to acknowledge the father against her wishes, or provide her reasons for not doing so. As will be seen below, I regard that solution as a serious incursion into the interests of the mother, who may have good reason for refusing to acknowledge (and disclose in a public document) the identity of the father. More to the point, those reasons are likely to reflect, or at least to be consistent with, the best interests of the child. I expect that the Legislature, considering these alternatives, concluded the least objectionable solution was to leave the choice to the mother.
[178] Whether the statutory regime constitutes discrimination "in the substantive sense intended by s. 15(1)", is a difficult question. If by being denied rights of registration and naming, Mr. Trociuk was also being excluded from the right to participate in the support and upbringing of his children as well as in their naming, I would agree that s. 15 was clearly engaged. But all that is in issue in this case is the right asserted by Mr. Trociuk to insist that the children's surnames be double-barreled and include his name. The Family Relations Act (or the Divorce Act where the parents were married) gives both parents access and custody rights in respect of the children and places on both the responsibility of supporting the children financially. The Adoption Act, R.S.B.C. 1996, c. 5, considered by this court in Re Birth Registration NO. 99-00733, [2000] B.C.J. No. 251, requires the consent to adoption of a father in Mr. Trociuk's position - i.e., a person who was a child's guardian with the mother (by virtue of s. 27 of the Family Relations Act), or a person who has "acknowledged paternity and has supported, maintained or cared for the child voluntarily or under a court order." (s. 13(2)(d).) As Ms. Ernst suggested in her affidavit, the connection between Mr. Trociuk's "ability to be a good father" on the one hand, and on the other his particulars appearing on their registration forms and his name being included in their surnames, is a weak one.
[179] It is true that for many members of Canadian society, the recognition of the birth and the naming of children hold considerable significance. It is likely because of this that the "norm" in our society is that both parents complete the registration statement or statements and reach a consensus on the surnames of their children. The Vital Statistics Act does not prevent couples from following the "norm" (which is the "starting position" under ss. 3 and 4 of the Act), or if their familial, religious or ethnic traditions differ from the norm, to follow those traditions instead. The Act permits the accommodation of many situations and views. But, I do not believe the effect of the differential treatment of mothers and fathers under the Vital Statistics Act promotes the view that fathers are "less capable, or less worthy of recognition or value" as human beings or members of Canadian society. If anyone has been historically regarded as "less worthy", it is single mothers, who until recently were treated as "fallen women", and their children, who were stigmatized as illegitimate or worse. The impugned legislation has removed the statutory and legal attributes of illegitimacy but has not removed the societal and practical difficulties that face single mothers. The terminology employed by the Court in Law is simply not apt to describe fathers in Mr. Trociuk's situation.
[180] Like the trial judge, however, I will assume for purposes of this judgment that ss. 3(1), 3(6) and 4(1)(a) of the Vital Statistics Act do discriminate against unacknowledged fathers "in the substantive sense intended by s. 15(1)." The question then is whether such discrimination can be reasonably and demonstrably justified under s. 1 of the Charter - an "Oakes analysis." (See [1986] 1 S.C.R. 103.) On the first criterion, Mr. Trociuk concedes that the objectives of the Vital Statistics Act are "pressing and substantial." The onus is on the Director to show that the means chosen by the Legislature are "reasonable and demonstrably justified" - a "form of proportionality test." (Oakes, at 139.)
[181] Perhaps because a dispute between two private parties is at the heart of this case, it does not lend itself well to the three branches of this analysis. However, the trial judge found that the first branch was met, - i.e., that the impugned measures were rationally connected to their objective, that they were fair and not arbitrary, and that they were "carefully designed to achieve" the objective. In his analysis:
. . . as the Director has deposed, there may be circumstances where the mother refuses or is reluctant to name the father, such as a birth resulting from sexual abuse, an assault, incest, or where the parties are no longer in contact. Forcing the mother to register the name of the father in any of those situations may result in the mother naming the wrong person as father or attempting not to register at all. Accordingly, this provision allows the mother to register her name and that of the newborn without forcing her to acknowledge the father.
. . . given the history of this provision it seems clear that the legislature chose to invest in the parent who, by biological necessity is always present at the live birth, the ability to determine the registration if she so chooses. That is not unfair or arbitrary, but is rationally connected and carefully designed to achieve the necessary objective. [paras. 39-40]
I am in respectful agreement with this reasoning.
[182] As well, the Court found that the impugned provisions minimally impaired the Charter right in question. The trial judge reasoned:
While the father's name may initially be omitted from the birth registration, the Act does provide for a s. 29 application to amend and correct the register for "errors or omissions". After the mother has initially registered and the objective of having accurate reporting of live births is thereby achieved, the father may apply if he so chooses to have his name included on the registration of the child. While the Director is not under an obligation to add the father's name and in fact may exercise his discretion not to if no "omission" is found (as was the case here), the infringement may only be temporary given the possibility of later inclusion. I observe that providing the male parent with the absolute right of amendment would effectively remove the measures taken in ss.3(1) and (6) and may defeat the objective of this legislation. As a result, I find that this provision only minimally impairs the rights of the father to be included in the birth registration. [para. 41]
I agree with my colleagues that a mother's refusal to acknowledge the father under s. 3(1)(b) of the Act is not an "error" or "omission" for purposes of s. 29 and that therefore, the Director would not have the 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. Instead, a change of name would have to be processed under the Name Act, R.S.B.C. 1996, c. 328.
[183] But even though a father who is able to obtain proof or acknowledgement of his paternity at a later date has no means of requiring the Director to amend the birth registration, I find that the proportionality criteria are met by ss. 3 and 4 of the Vital Statistics Act. Whether or not the mother in the instant case has a good reason for not wishing to acknowledge the father, I consider that in most situations where the mother declines to do so, she will have good reason for her decision. Since such mothers were not represented in this case and are unlikely to have access to an organization that represents their interests, we have only the evidence of the Director of Vital Statistics on this point. He stated in his affidavit:
The most common circumstance is where the father is no longer in contact with the mother or he disputes that he is the father of the child. Other circumstances include where the mother has had sexual relations with multiple partners and is uncertain of who the father is but does not want to state that the father is unknown; where the mother is a victim of incest; where the birth of the child was the result of non-consensual sexual relations, where the mother was involved in an abusive relationship with the father and does not want the relationship to continue; and instances of teenage pregnancy.
One might also suggest that where the mother or father or both are married to other people, the mother may be unwilling to acknowledge the biological father in a public document, and that it is not likely to be in the child's interests that she do so. Another scenario might occur where the father is an infamous criminal whose name would subject the child to social stigma. The legislation as applied in each of these instances permits the mother and child to maintain their privacy, at least at this early stage of the child's life. The birth may still be recorded quickly, and any disputes regarding paternity are left to be determined according to the common law applicable to paternity testing, and the family relations legislation. In either context, the interests of the children are accorded a high degree of consideration. The court retains the discretion not to order paternity testing, for example, where the results might disrupt a strong and healthy family unit: see the cases reviewed by Rowles J.A. for this court in J.S.D. v. W.L.V., [1995] B.C.J. No. 653 (Q.L.). As I have already noted, where paternity is known, both the Family Relations Act and the Divorce Act also permit fathers to apply for access and custody on an equal footing with mothers, subject again to the paramount consideration of the child's best interests. In contrast, as the Director deposes, no part of the Vital Statistics Act has as its purpose "the establishment of paternity or the resolution of disputes between mothers and men who assert that they are or are alleged to be fathers."
[184] The Director also notes the likelihood that if women were required to identify the fathers of their children or to include his surname in their children's surnames in all circumstances except where the father was not known, the temptation to state simply that the father was "unknown", or to provide inaccurate information, would be too great in many cases. The Director deposes:
It is my belief, based on my knowledge and experience as Director, that if the mother was required to include the father's particulars, information would be less readily provided and would be less reliable. In some instances, the information provided would wrongly name as the father persons who were not the father of the child born. The result would be inaccurate statistics with respect to the registration of births in the Province and the creation of a potential source of dispute regarding paternity.
[185] Returning to the lexicon of Oakes, I am of the opinion that ss. 3(1)(b), 3(6) and 4(1)(a) of the Vital Statistics Act are measures that are rationally connected to their objective (i.e., the prompt recording of birth particulars that are as accurate as possible, and the prompt naming of children); that the measures are as fair as possible in the circumstances and are not arbitrary; and that they are carefully designed to achieve the objective. I also find that ss. 3(1)(b), 3(6) and 4(1)(a) impair the father's (assumed) equality rights only minimally. They do not in the long run prevent him from "parenting" in the substantive sense, nor do they prevent children from having the opportunity to be exposed to both parents, subject of course to their best interests as codified in family relations legislation.
[186] As for the proportionality between the effects of these provisions and the legislative objective, I acknowledge that it seems "unfair" that Mr. Trociuk cannot share in his children's name in the same way he may share in other aspects of their upbringing and support. However, if the legislation were to require a mother to disclose paternity or to indicate the reasons for not acknowledging a known father, the consequences for children and mothers (and the Director of Vital Statistics) would be far more serious. Assuming a mother chose not to lie by saying that the father was "unknown", she would have to indicate which of the "harm" categories she fell into, assuming such categories could be drafted to anticipate every possibility, which would be impossible. The father would then have to be given the opportunity to dispute the mother's reasons and the Director (or some other tribunal) would presumably be obliged to hold a hearing into the mother's reasons for refusing. Whether the reasons were found to be "sufficient" or not, the effect of the dispute on the children, and the conflict between father and mother would be much greater than it otherwise would have been.
[187] In summary, I acknowledge that the comprehensive plan adopted by the Legislature, after careful consideration by the Uniform Law Conference, will not work perfectly in every case. But keeping in mind the admitted importance of timely registration and name identification, I am not persuaded these provisions could be successfully redrafted (i.e. without possibly offending s. 15 of the Charter) except by giving fathers an absolute right to be included in the registration or to require the disclosure of reasons by mothers who oppose such inclusion. In my view, there is good reason to believe such an approach would cause far more harm than good and would be unreasonable in most cases where the problem arises. I conclude, therefore, that on balance, the default provisions are a reasonable limitation on any Charter right that may be breached by the impugned provisions of the Vital Statistics Act.
[188] For these reasons, I would dismiss the appeal.
"THE HONOURABLE MADAM JUSTICE NEWBURY"