Family Law – Naming a Child

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Although many people may not think that naming a child is a family law matter, there are many legal considerations that may affect your choice for your child’s name.

Your Child’s First Name

There is a fairly recent trend among parents to try to find a unique name for their child. However, although parents may wish to create an original or memorable name, the law restricts how a person can name his or her child. The laws about naming a child are different in every province. In British Columbia, if the Registrar of Vital Statistics believes that the name chosen by a child’s parents will cause mistake or confusion or will cause the child or anyone else embarrassment, he or she must refuse the name.

Your Child’s Last Name

Although parents do not typically choose a last name as they would a first name, parents may not agree as to whether the child should have one parent’s last name or a combination of the two. A child’s last name will depend on who reports the birth. If only one parent fills out the form for reporting a child’s birth, that parent may choose the child’s last name. If more than one parent fills out the form, then both parents must decide on the name. If they do not agree because they have different last names, they must give the child a hyphenated last name containing both of their last names.

Changing Your Child’s name

A parent may wish to change his or her child’s name in many circumstances, including where:

  • he or she did not fill out the forms reporting the child’s birth;
  • he or she and the child’s other parent have separated;
  • he or she changed his or her last name and wants the child’s last name to be the same; or
  • the child would like to change his or her name.

Whether you will be able to change your child’s name will largely depend on what is in the child’s best interest. Generally, in order for you to change your minor child’s name, you will need to obtain the consent of the other parent. For children over a certain age, the child may be required to say why he or she would like to change his or her name.

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Family Law – Unequal Division of Family Property

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The Family Law Act, s. 95(1), gives the Supreme Court the power to order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

The Family Law Act, s. 95(2) lists several factors the Supreme Court may consider when deciding whether or not to order unequal division of family property, family debt, or both:

  • the duration of the relationship between the spouses;
  • the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];
  • a spouse’s contribution to the career or career potential of the other spouse;
  • whether family debt was incurred in the normal course of the relationship between the spouses;
  • if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
  • whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

  • a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

The recent case of MCV v. FV, 2018 BCSC 96 (“MCV”) elaborates on the test the Court will apply when deciding whether or not to make an order under s. 95. In MCV, the Honourable Madam Justice Darbi wrote that

[122]     In Jaszczewska v. Kostanski, 2016 BCCA 286, the Court of Appeal interpreted the legislative intent of section 95 as constraining the exercise of judicial discretion:

41        Clearly, the statutory intent is to constrain the exercise of judicial discretion. The test of “significant unfairness” imposes a more stringent threshold than the mere “unfairness” test of the FRA to allow unequal division by a court. As Mr. Justice Butler observed in Remmem v. Remmem, 2014 BCSC 1552, “significant” is defined as “extensive or important enough to merit attention” and the term refers to something that is “weighty, meaningful or compelling.” He concluded that to justify an unequal distribution “[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)”. Remmem at para. 44. As the judge here noted at para. 162 of her reasons, the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. I agree.

In MCV, a wife sought unequal distribution of family property on the ground that the husband failed to produce a trust indenture and financial statements for the trust, and that the wife was deprived of the opportunity to determine if the husband’s interest in the trust qualified as family property under the Family Law Act.

Madam Justice Darbi wrote that failure to disclose financial assets may be considered as a factor under 95(2)(i) when deciding whether or not to order unequal division of family property. Ultimately, the Court refused to order unequal division of the family property, writing that the threshold for unequal division is “high”, and elaborating that the test had not been met because:

[130]     Balancing the evidence as a whole, I cannot conclude that Mr. V. is concealing assets. Mr. V. has disclosed the existence of the European Trust. He disclosed that he receives monthly distributions from the European Trust. Mr. V. has also disclosed that the European Trust has paid for his medical expenses in the past and has made charitable donations on his behalf. Mr. V. was forthright in disclosing that he believes that his siblings are also beneficiaries of the European Trust. I accept that Mr. V. sought a copy of the trust deed, and related information for his own edification on many occasions and that he has repeatedly been denied that information. It can be reasonably inferred that Mr. Suhner has not responded to Mr. V.’s requests for information made during the course of this proceeding.

[131]     Moreover, the evidence does not establish the nature of Mr. V.’s interest in the European Trust beyond the trustees having discretion to make distributions to Mr. V. from the trust. There is no evidence before this Court with respect to the duration of the trust, the value of its assets, and who the other beneficiaries might be. I conclude that there is an insufficient evidentiary basis before the Court to make any reliable conclusions regarding the attributes of the European Trust.

[132]     Similarly, there is an insufficient evidentiary basis for this Court to reasonably draw any inferences that Mr. V. has other undisclosed assets in Europe that generate income or the value of which may have increased since 2002. While I found Mr. V.’s evidence on the various financial transactions involving his siblings difficult to follow and somewhat inconsistent, I am not persuaded that I can make any reliable conclusions regarding undisclosed assets in Europe.

[133]     In the end, I do not consider it appropriate to draw any adverse inferences regarding the existence of undisclosed family property.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Estate Litigation – Varying the Will in Favour of a Spouse

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Wills Variation: Unger v Unger Estate, 2017 BCSC 1946

In British Columbia, a person has an obligation to provide for his or her spouse and children in his or her Will. If a deceased person did not provide sufficiently for a spouse or any children, the spouse or the children can make an application to vary the deceased’s Will to receive a fair portion of the deceased’s estate. In deciding whether to vary a Will, a Court will weigh the will-maker’s wishes within the Will against his or her moral and legal obligations to his or her spouse and children. A Court will generally give more weight to the will-maker’s obligations to his or her spouse and children than to the will-maker’s wishes within his or her Will.

Unger v Unger Estate

In the recent case of Unger v Unger Estate, the British Columbia Supreme Court considered an estate litigation case in which a wife brought an application to vary her deceased husband’s Will. After 12 years of marriage, the Plaintiff and the deceased separated and a Court declared that the couple was legally separated. At the time of separation, the couple owned a home which was registered in joint names. As a result of the legal separation, the joint tenancy was severed leaving each person with half the home. However, after several months, the couple reconciled and were together until the husband’s death. The couple were together for approximately 34 years total.

The Will

In his Will, the deceased left the majority of his estate to his four children from a previous marriage. In the Will, the husband stated that he was not leaving anything to the Plaintiff under the Will because, when the couple separated, half of the family home was transferred to the Plaintiff.

The Court’s Decision

The Court considered the length of the couple’s relationship and the circumstances of their relationship and held that the deceased had an obligation to provide for his wife under his Will. The Court determined that, although the Plaintiff had received half of the matrimonial home by virtue of the separation, this did not satisfy the deceased’s moral and legal obligations to his wife. The Court ordered that the residue of the estate be divided in the following manner:

  • 30% to the Plaintiff; and
  • 70% to be divided between the deceased’s four children.

 

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Family Law: I’m not listed on my child’s birth certificate – what can I do?

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The Vital Statistics Act requires that the birth of a child must be reported within 30 days.  In some circumstances, only one parent may report the birth.  For a variety of reasons when that happens, that parent may not report the particulars of the other parent.

Not being listed on your child’s birth certificate is understandably upsetting.  From a legal stand point, it is also beneficial for a child to have both parents listed on his or her birth certificate as this can impact the child’s right in some cases (e.g., in intestate succession).

The Vital Statistics Act sets out the procedures for amending a child’s registration of birth and birth certificate.

The simplest procedure is, if the parents together (or the parent who originally reported the birth) apply to the Ministry of Vital Statistics to change the registration.  This is done by filling out a form and paying the applicable fee.

If the parent who originally reported cannot, or will not, cooperate with you in making such an application, you can apply on your own.  However, this application will need to be accompanied by an Order of the court declaring that you are parent of the child.  Unfortunately, an Order that you are a guardian and have parenting time with the child may not be enough if there has not been an Order specifically declaring you a parent.

A parentage declaration Order can be obtained in either Provincial Court, or Supreme Court.  In order to obtain a parentage declaration, a paternity test many need to occur.  Both levels of court have jurisdiction to order this as well.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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