Court order fills in legislative gap, allows application for name change submitted on behalf of teenaged girl by Director (Child, Family and Community Service Act)
November 12, 2019
BY Kevin Zakreski
The Supreme Court of British Columbia has relied on its little-used parens patriae (= “parent of the country”) power to fill a gap in the Name Act.
The Director, Child, Family and Community Services Act v Registrar General of the Vital Statistics Agency of the Province of British Columbia, 2019 BCSC 1859, involved an application brought on behalf of a child in the continuing care of the director for a change of name:
S.M.H. was removed from her family home and placed in the interim custody of the Director under s. 35(2)(a) of the CFCSA on October 20, 2015. On October 30, 2015, she was placed in the Director’s temporary custody and then into his continuing custody, under s. 60 with reference to s. 49(5), on March 6, 2018. Following her removal, S.M.H. was placed in a foster home. By all accounts, her relationship with her foster mother (“Foster Mother”) is very positive and S.M.H. has fared well in her care.
S.M.H. associates her surname with her father and the trauma she suffered in her family home. The evidence includes a statutory declaration in which she states: “. . . as a result of the trauma I have suffered at the hands of my father, the use of the surname [H.] increases the pain I feel arising from my past and I verily believe that a change in my last name . . . will result in less bouts of anxiety and pain” as well as her handwritten statement indicating that “one [of] the best Healing would be to get rid of and no longer sign with that surname.” [Ellipses in original.]
The application was refused on the basis that “the Name Act restricts who may apply for a minor to a parent only.” This decision was appealed to the supreme court.
The court found that the interaction of the Name Act, the Family Law Act, and the Adoption Act had created a legislative gap:
The three pieces of legislation must be read together. Section 4(1) of the Name Act allows a “parent having guardianship or custody” to apply to change the name of a minor. The Name Act defines “parent” with reference to Part 3 of the FLA. Section 26 of the FLA provides that a child’s parents are the birth mother and biological father. Where a child has been adopted, s. 25 of the FLA indicates the child’s parents are as set out in the Adoption Act, R.S.B.C. 1996, c. 5. S.M.H has birth parents, but is in the Director’s continuing custody and s. 50 of the CFCSA makes the Director her sole personal guardian. Thus, S.M.H has no “parent” with guardianship or custody, and the Director has guardianship and custody but is not a “parent.” There is no person qualified to bring an application under s. 4(1) of the Name Act on S.M.H’s behalf.
The court decided that this was an appropriate case to remedy the gap through the exercise of the parens patriae power:
As there is a gap in the legislation, I conclude that it is appropriate, in the circumstances, to exercise the court’s parens patriae power to provide S.M.H. with the remedy she seeks. The underlying principle of the power is articulated in E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC),  2 S.C.R. 388 [“Eve”]. As observed in Senini (Re), 2016 BCSC 2299 (CanLII): “An appeal to the parens patriae jurisdiction of the Court is the equivalent of an appeal to its inherent jurisdiction; namely, a jurisdiction which can exercised when no rule or statute explicitly confers jurisdiction” (para. 31).
The court does not exercise its parens patriae jurisdiction lightly, as it is founded on necessity and the need to protect those who cannot protect themselves: L.S. v. British Columbia (Director of Child, Family and Community Services), 2018 BCSC 255 (CanLII) [“L.S.”] at para. 30. However, the jurisdiction is properly invoked where there is a legislative gap such that relief cannot be obtained and a minor would, but for its exercise, be left in a hopeless situation: L.S. at paras. 31 to 33 and M.Z. and G.Z. (Re), 2018 BCSC 325 (CanLII) at para. 26.
I am satisfied on the evidence before me that using and answering to her family surname causes S.M.H. significant ongoing anxiety and distress that is injurious to her well-being and an obstacle to and distraction from her efforts to heal. The evidence further indicates that adopting the Foster Mother’s surname will provide S.M.H. with an enhanced sense of safety and security that she very much needs.