Dad
wins right to name kids
Sole
power of mother dashed by high court
Vancouver Sun and CanWest News Service, Neal Hall and Janice Tibbetts, Saturday, June 07, 2003
A father of triplets secured a victory for paternity rights in the Supreme Court of Canada on Friday when it unanimously ruled it is discriminatory for mothers to have the sole power in deciding their children's surname.
For seven years, Darrell Trociuk of Delta has been fighting a legal battle to be recognized as the father of his triplet sons by having his name included on the boys' birth certificates.
He finally won his case when the court ruled B.C.'s Vital Statistics Act violates Canada's Charter of Rights and Freedoms because it discriminates against biological fathers on the basis of sex.
A section of the act provides biological mothers with sole discretion to include or exclude information relating to biological fathers when registering the birth of a child.
A father who is not named on a birth certificate has no say in the surname of his child.
However, Trociuk will not be able to seek name changes for sons Ryan, Andrew and Daniel until the province rewrites the act. The court gave the B.C. government a year to fix the constitutional defect in its act or that section will be invalid.
Trociuk was overjoyed with the ruling, which means the government will also cover the tab for his four-year legal battle in the Supreme Court, as well as the B.C. Court of Appeal and B.C. Supreme Court.
"It's great," the 38-year-old landscaper said. "It will help a lot of families across Canada. Now at least fathers have some rights, other than the right to pay."
He also praised the work of his Vancouver lawyer, Dairn Shane, for winning the case after so many years. "A lot of lawyers laughed at me when they heard what I wanted to do."
Said Shane: "We've been saying all along that a father should have an equal right to be on the birth registration and that fathers have an equal right to participate in the surname naming of the child."
The lower court rulings sided with the birth mother, Reni Ernst, who refused to include Trociuk's name on the triplets' birth certificates.
Trociuk claimed Ernst initially agreed to register the births using "Ernst-Trociuk" for their surname. However, when she filled out the birth registration forms she indicated: "The father is unacknowledged by the mother." She also stated: "Mother & father are not together."
Trociuk was never married to Ernst, 44, who said in an interview that, as soon as the boys are old enough, she will allow them to choose their names and, if that means a name change, she will pay for it.
Ernst said she is happy about the ruling in favour of fathers' rights.
"That's a huge success," she said. "I have never really believed this is a mother's issue or a father's issue. It's a children's rights issue. Children have a right to both parents."
The bitter and convoluted dispute started after the triplets' difficult birth on Jan. 29, 1996.
Trociuk and Ernst had been in a steady relationship, which was breaking down.
"I got pregnant on our good-bye fling," Ernst said.
The pregnancy exacerbated an already debilitating illness, leading to liver and kidney problems and a crippling pregnancy-induced arthritis.
Trociuk was present at the birth and visited during the almost three months Ernst and the babies were in hospital.
However, he would not sign the birth registration because he wanted the triplets to have only his last name, Ernst said.
"I had offered hyphenated names and he said that was out of the question. He simply refused to sign the forms."
Ernst signed the forms herself, as was her right, and declared the father as unacknowledged.
"I had to put either unacknowledged or unknown. Women are not allowed to name the father without their written consent," she said. "I'm still trying to get him on the birth registration. All he has to do is sign."
Provided both parents register, but can't agree on a name, children receive a hyphenated surname.
Trociuk has visitation rights and pays about $200 a month in child support for his seven-year-old sons, who live in Nanaimo.
When the parents became estranged, he obtained a provincial court order for access. Trociuk also had to spend $1,400 on DNA paternity testing to prove he was the father, which is now resolved.
After Trociuk's two requests to the director of Vital Statistics to be acknowledged on the birth registration forms were refused, he launched legal action against the director and the attorney general of B.C.
In 1999, B.C. Supreme Court Justice Ross Collver dismissed Trociuk's application for the court to compel the director of vital statistics to include information about the father on the birth certificates and change the children's surnames.
The judge found the provision of the act "only minimally impairs the rights of the father to be included in the birth registration."
"She's got all the rights and I've got none," he said of his ex-girlfriend in 1999 after losing his first round of his court battle. The B.C. Court of Appeal later upheld the B.C. Supreme Court ruling.
"Basically, I feel I was used as a sperm donor," said Trociuk. "Just because she's chosen not to be with me doesn't mean the kids shouldn't have a dad."
B.C. changed its legislation last year to allow "unacknowledged" fathers to be included on a child's birth certificate, but it did not extend surname rights. About five per cent of fathers in the province are unacknowledged on birth certificates.
Canada Supreme Court Justice Marie Deschamps, writing her first ruling, said mothers and fathers should be equal.
"Contribution to the process of determining a child's surname is another significant mode of participation in the life of a child," she wrote in the 9-0 decision. "For many in our society, the act of naming a child holds great significance."
Deschamps noted there are sometimes good reasons for excluding a father, such as in cases when a woman became pregnant by rape or incest. A possible solution, she wrote, would be for mothers to go before a judge, at a closed hearing, to explain why they want to retain sole naming authority.
B.C. Attorney General Geoff Plant was not available to comment, but staff said he will be reviewing the decision on the weekend.
With files from Judith Lavoie, Victoria Times Colonist
Copyright 2003 Vancouver Sun
