National Post

Friday, June 21, 2002

Ontario court gives mother sole power on child surname

Decision based on wording of statute from Peterson era

Sarah Schmidt
National Post

Mothers can ignore the wishes of fathers when choosing a child's surname, Ontario's highest court has ruled.

The decision, expected to have national consequences, reflects a judicial bias in favour of mothers, fathers' rights groups say.

The Ontario Court of Appeal said a mother can acknowledge a father for custody or child support reasons but does not have to acknowledge him on a birth registry for naming purposes.

It said the province's Vital Statistics Act, which is worded similarly to like statutes in other provinces, provides mothers with the "ultimate ability" to name their children.

"In my view, in structuring the provisions as it did, the legislature made a policy decision to allow the mother to have the ultimate ability to determine the surname of the child in recognition of the fact that there will be circumstances where a mother will have the ongoing responsibility for the child, and should not be forced to have the child linked by name with the biological father," Madam Justice Kathryn Feldman wrote in a unanimous decision.

The Vital Statistics Act stipulates that "if the mother certifies the child's birth and the father is unknown to or unacknowledged by her, she may give the child her surname or former surname."

The act in its most recent form was enacted by David Peterson's Liberal government in 1990.

In giving mothers greater discretion to name or not name a father, the court reasoned: "Because acknowledgement involves a volitional act of admitting knowledge of a fact, it is possible for a person to acknowledge something to be true in one context, but to decline to do so in another context."

At issue is the name of 4-year old William Joseph Kreklewetz Scopel, the product of a three-year relationship between Torontonians Richard Kreklewetz and Marian Scopel, which ended permanently shortly after William's birth in January, 1998.

Joel Miller, counsel for Ms. Scopel, said yesterday Ontario mothers ''should be excited'' about the ruling.

"A mother, whether married or not, has the right to choose to give her child her own surname alone, even if the father disagrees. She can choose not to acknowledge the father for the purposes of naming the child, even though she knows who the father is and may be living with the father."

Mr. Kreklewetz, William's father, wanted his son to have a hyphenated last name, instead of having his surname as a middle name.

"I never thought I was being unreasonable to have both his parents reflected in his surname. I didn't do it for myself. I did it for my son," he said yesterday.

The act states that if the mother acknowledges the father on the birth registry and both parents certify the child's birth but do not agree on a surname, the child shall be given a surname consisting of both parents' surnames hyphenated in alphabetical order.

Ms. Scopel, who declined an interview, and Mr. Kreklewetz, a lawyer, began their relationship in January, 1995, and repeatedly split up and got back together over the course of the relationship.

Mr. Kreklewetz remains an active parent. He enjoys custody of William about 45% of the time, including a six-week holiday block. He also makes monthly child support payments.

"I feel beat up. I just can't understand how they could have morally come to do this decision," Mr. Kreklewetz said.

The Ontario court relied on a similarly controversial ruling last year in the British Columbia Court of Appeal.

Philip Epstein, Mr. Kreklewetz's lawyer, conceded this week's decision "has Canada-wide impact. The Ontario Court of Appeal is a highly regarded court. You now have two courts saying that same thing about acknowledgement. I would think that it's very likely that other provinces will follow suit, now that two concurrent courts of appeal have agreed."

The Supreme Court of Canada could block this trend. After losing in the B.C. Court of Appeal, Darrell Trociuk, a Vancouver father, successfully sought leave to appeal to Canada's highest court.

It will hear arguments in the fall. Mr. Trociuk is drawing strength from a dissenting opinion, which found that the naming rules of the Vital Statistics Act violates the equality provisions of the Canadian Charter of Rights and Freedom because it discriminates against men.

The naming rules violate the Charter insofar as they "grant the mother of a child the unfettered power to refuse to acknowledge the biological father of child on the birth registration form, and thereby preclude him, amongst other things, from participating in choosing the surname of the child," Madam Justice Jo-Ann Prowse wrote in her dissenting opinion.

Ross Virgin, president of In Search of Justice, a Canadian father's rights organization, remains skeptical of a positive outcome for fathers.

He said the Ontario case shows how a pervasive feminist interpretation of family law "distorts justice. There is no justice for men, that's for sure. Whatever is good for the mother is good for the child. Who cares about the father."

Hester Lessard, professor of law at the University of Victoria, said the Supreme Court has tough questions to answer.

"At both stages of the Charter analysis, there are really interesting questions. Do the provisions treat mothers and fathers differently? If there is an inequality, is this inequality justifiable?

Dr. Lessard said the stakes are high.

"It's a puzzling issue because on one level it seems quite trivial. But on another level, it's obvious because we have huge investments about naming. Historically, it's been a very important and defining cultural practice.

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