Citation: Trociuk v. British Columbia Date: 19991014
(Attorney General) et al
1999 BCCA 637
COURT OF APPEAL FOR BRITISH COLUMBIA
ORAL REASONS FOR JUDGMENT:
BEFORE THE HONOURABLE October 14, 1999
MR. JUSTICE LAMBERT
IN CHAMBERS Vancouver, B.C.
DARRELL WAYNE TROCIUK PETITIONER (APPELLANT)
THE ATTORNEY GENERAL OF BRITISH COLUMBIA and THE DIRECTOR OF VITAL STATISTICS
appearing for the Appellant
appearing for the (Crown) Respondent
The Attorney General of British Columbia
appearing for the Respondent
The Director of Vital Statistics
(Application for Amicus Curiae)
 LAMBERT, J.A.: The action is brought by the father of three young boys, who are triplets, against the AttorneyGeneral and the Director of Vital Statistics seeking a rectification of the register of Vital Statistics to show that he is the father of the children and to indicate a change of name of the surname of the children so that they would bear his surname hyphenated with that of the mother or coupled with the name of the mother. The application is brought seeking remedies by way of mandamus, by exercise of the parens patriae jurisdiction of the Court, and thirdly, by relief under the Charter of Rights and Freedoms based on inequality within the meaning of s. 15.
 The application before me this morning is an application that an amicus curiae be appointed by the Court to represent
the interests of the three children in the issues at stake in this appeal. It is particularly suggested that there may be a Charter argument that ought to be laid before the Court when the Court is considering the best interests of the children as it would no doubt wish to do in this appeal.
 A flaw in the process to date has been that the mother has not been a party to the proceedings. She is represented informally by counsel this morning and the counsel was asked by the Legal Services Society to take up that representation this morning but he does not have general instructions to represent the mother in these proceedings.
 The first thing that I think I must deal with is the status of the mother. She ought to be a party to these proceedings. Her being joined as a party is not opposed by counsel for the appellant or by anyone else. Counsel for the appellant is content that the oral application indicating her interests should be treated as an application that she be joined as a party/respondent to this appeal, and I now direct that the mother be added as a party/respondent to the appeal. Since the Legal Services Society has been good enough to take an interest in the mother's position and to instruct counsel this morning, I hope that the funding of the mother's representation will be handled through the Legal Services Society. If that presents any difficulties, I would make whatever order is necessary to make sure that funding is in place and I would invite counsel to return to the Chambers judge if it should turn out that there is difficulty about the funding of the wife's representation as a party.
 Assuming then that the father is represented on the hearing of the appeal and the mother is represented on the hearing of the appeal; that both have had an opportunity to file factums; and that the Attorney General of British Columbia is represented on the appeal with an opportunity to file a factum, I have some trouble in anticipating any matter that could be put before the Court by an amicus curiae that the Court would not think of for themselves and which would not be put before the Court by counsel for the father and counsel for the mother. There is a theoretical possibility of course that an amicus curiae representing the interests of the children would be able to think of something that counsel has not thought of, perhaps to the detriment of the father, or to the
detriment of the mother, or to the detriment of both. I do not consider that the possibility is significant that all proper interests would not be before the Court if the father is represented and the mother is represented and the Attorney General is present, or that there is any measurable risk at all that the interests of the children will not be fully explored because of a lack of thought. The children of course are too young at the age of three and a half to give instructions, so their preferences, which might be an important aspect of the case, cannot be placed before the Court independently.
 I would not wish to prevent the division of the Court which hears this appeal, if that division sees this matter differently than I do, from seeking the help of an amicus curiae once they have considered the factums or considered the arguments. Consequently, I would prefer not to dismiss this motion but rather to adjourn it to the division of the Court that is hearing the appeal to be dealt with by them as they wish in the course of the appeal if they should think that an amicus curiae would provide them with some advantages that they might not have without such an appointment. But I would say that no renewal of this application should be made until the division convenes to hear the appeal itself. I would dispose of the motion this morning in that way.
"The Honourable Mr. Justice Lambert"