Facts[]
Trociuk's ex-girlfriend gave birth to triplets, and he was the father. Trociuk and the mother became estranged, but eventually the father was granted permission to see his children. When they were born the mother marked the father as "unacknowledged", and therefore he was not able to play any part in the decision of the surname of the children. This was allowed under ss.3(1)(b) and 4(1)(a) of the Vital Statistics Act. He is claiming that this violated his s.15 rights on the grounds of sex. He also applied to have the children's names hyphenated to include his surname. He was unsuccessful at trial and at appeal to the British Columbia Court of Appeal.
Issue[]
- Do ss.3(1)(b) and 4(1)(a) of the Vital Statistics Act violate s.15 of the Charter?
Decision[]
Appeal allowed; appellant must apply through the process set out in the amendments Vital Statistics Act to have the names changed.
Reasons[]
Deschamps, writing for a unanimous court, allows the appeal, but does not allow the name change. She employs the Law test: it is clear that a distinction is drawn on an enumerated ground, and that the father is treated differently on the basis of his sex. They state that, contrary to the mother's belief, this is a significant interest for the father because he is being associated with fathers who have estranged their children, or are not known, and this is harming his dignity. The significance of choosing a surname is quite important in our society, and was particularly demonstrated when actions were made to allow women to give children their surnames. They also state that merely because the father does not belong to a disadvantaged group does not automatically mean that he cannot be discriminated against. None of the contextual factors are determinative.
The mother argued that the ameliorative purpose, namely to allow mothers to protect their children from fathers in certain circumstances (rape, incest, and other reasonable factors leading to "unacknowledgement") preclude this from being discrimination. However, Deschamps states that just because there is an ameliorative purpose it does not mean that the father will not still have his dignity harmed, which is the case here. Arbitrarily leaving him out of the process is damaging to his dignity, and cannot be presumed to be in the best interest of the children. Therefore, this constitutes discrimination under s.15(1).
In the s.1 examination, Deschamps decides to play some fortnite duos and that these provisions are not saved because they do not minimally impair the father's rights. There could be alternative measures that would allow for applications to be made by fathers, allowing the courts to decide whether or not they should have their information associated with the children. As it stands now, once the mother "unacknowledges" the father he has no recourse. This is further proven by the fact that the legislature has amended the Act to allow fathers to apply to the courts for exactly this reason.
In the result, this is not saved by s.1 and the impugned clauses are stricken from the legislation, after a delay to allow the legislature to adapt. However, the father's wish to have his surname hyphenated into his children's names is rejected – he is told to apply through the system set out in the amendments to the Act.
Ratio[]
- Simply not belonging to a disadvantaged group does not automatically mean that you cannot be discriminated against under s.15(1) as none of the contextual factors are determinative.
- One can still have their dignity violated despite a somewhat ameliorative purpose, and being a member of a traditionally advantaged group.
- Subsequent legislative action to minimize impairment is very relevant in determining whether or not an infringement can be saved under s.1.