Bill 37 - An Act Respecting the Change of Name Act and the Vital Statistics Act

BILL 37

An Act Respecting the Change of Name Act and the Vital Statistics Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Change of Name Act

1( 1) Section 1 of the Change of Name Act, chapter 103 of the Revised Statutes, 2014, is amended in the definition “child” by striking out “under 19 years of age who is not married” and substituting “under 16 years of age”.

1( 2) Section 4 of the Act is amended

(a) in paragraph (1)(a) by striking out “19 years of age” and substituting “16 years of age”;

(b) in paragraph (2)(e) in the portion preceding subparagraph (i) by striking out “19 years of age” and substituting “16 years of age”.

1( 3) Section 5 of the Act is amended

(a) in paragraph (2)(a) by adding after subparagraph (vii) the following:

( vii.1) the written consent of all other parents of the child, on a form provided by the Registrar General, or, if there are no other parents, confirmation that there are no legal proceedings ongoing in relation to the parentage or custody of the child,

(b) by adding after subsection (2) the following:

5( 2.1) Despite paragraph (2)(a), the Registrar General may consider an application to change the registered name of a child if an applicant does not fulfil the requirement in subparagraph (2)(a)(vii.1), but the applicant provides documentation satisfactory to the Registrar General that

(a) the applicant notified all other parents of the child of the application and of the other parents’ right to object to the change in name of the child, and

(b) the applicant has provided an affidavit of service showing that a written consent form has been served personally on all other parents of the child or provided documentation showing that the consent form was sent to the other parents by registered mail and that the other parents received that notice.

5( 2.2) Despite subsection (2), an applicant may make an application to the court to dispense with the consent of a parent required under this section and a judge, having regard to the best interests of the child, may dispense with the required consent and the Registrar General shall comply with the decision of the judge.

5( 2.3) If a child has sought the consent of a parent required under this section and that parent objects to the change of the registered name of the child and has refused to consent, the child may apply to the court for an order respecting the change of the registered name of the child and the Registrar General shall comply with that order.

5( 3) If an applicant seeks to change the registered name of a child of 12 years of age or older, his or her application shall be accompanied by the written consent of the child, on a form provided by the Registrar General, and witnessed by a person authorized to solemnize marriages under the Marriage Act or a health professional prescribed by regulation under the Vital Statistics Act.

(d) by repealing subsection (7);

(e) by repealing paragraph (8)(a) and substituting the following:

(a) the applicant did not notify all parents of the child who are required to be notified under subsection (2.1),

1( 4) Subsection 8(1) of the Act is repealed and the following is substituted:

8( 1) A person who has been notified by an applicant of an application to change the registered name of a child may object to the application in writing to the Registrar General within 30 days after the date of service or date of reception of the notice, as the case may be.

Vital Statistics Act

2( 1) Section 1 of the Vital Statistics Act, chapter V-3 of the Acts of New Brunswick, 1979, is amended

(a) by adding the following definitions in alphabetical order:

“child”, unless the context otherwise indicates, means a person under 16 years of age; (enfant)

“court ”means The Court of Queen’s Bench of New Brunswick; (Cour)

“custody”, in relation to a person having custody of a child, includes custody shared with another person or persons; (garde)

“judge” means a judge of The Court of Queen’s Bench of New Brunswick; (juge)

“parent”, unless otherwise specified, means (parent)

(a) the natural parent of a child except if the child has been legally adopted in which case it means the adoptive parent, and

(b) a person with whom a child ordinarily resides and who demonstrates a settled intention to treat the child as a child of the person’s family;

“personal service”, with respect to a document, means personal service as described in Rule 18 of the Rules of Court and “served personally” has a corresponding meaning; (signification à personne)

“sex designation” means the recorded sex of a person on the birth registration of the person; (désignation de sexe)

(b) in the French version in the definition « registraire général adjoint » by striking out the period at the end of the definition and substituting a semicolon;

(c) in the English version in the definition “unable” by striking out the semicolon at the end of the definition and substituting a period.

2( 2) Section 34 of Act is repealed and the following is substituted:

Change to the sex designation of a person

34( 1) A person may apply to the Registrar General under this section to change the sex designation of the person if the person

(a) is 16 years of age or older, and

(b) was born in the Province or has been ordinarily resident in the Province for at least three months immediately before the date of the application.

34( 2) An application under this section shall be submitted to the Registrar General on a form provided by the Registrar General and shall include

(a) a written statement made by the applicant that the requested sex designation is consistent with the gender with which the applicant identifies and the applicant is currently living in a manner consistent with the requested sex designation and intends to continue to do so,

(b) a written statement from a health professional prescribed by regulation who has treated, evaluated or consulted with the applicant that confirms that the sex designation of the applicant is inconsistent with the gender with which the applicant identifies and, as a result, the sex designation of the applicant should be changed, and

34( 3) Instead of conforming to the requirement of paragraph (2)(b), an application may include a certificate signed by a medical practitioner legally qualified to practise medicine in the jurisdiction in which gender confirming surgery was performed on the applicant

(a) explaining the surgical procedures carried out, and

(b) certifying that

( i) the medical practitioner performed gender confirming surgery on the applicant, and

( ii) as a result of the gender confirming surgery, the sex designation of the applicant should be changed.

34( 4) The Registrar General may waive or modify a requirement under this section, on application in the form required by the Registrar General, if satisfied that it would be in the applicant’s best interest.

2( 3) The Act is amended by adding after section 34 the following:

Change to the sex designation of a child

34.1( 1) A parent may apply to the Registrar General under this section to change the sex designation of a child of whom the parent has lawful custody if the child was born in the Province or the child and parent have been ordinarily resident in the Province for at least three months immediately before the date of the application.

34.1( 2) The Registrar General may consider an application under this section with respect to a child who was not born in the Province and who has not been ordinarily resident in the Province for at least three months immediately before the date of the application if, in the opinion of the Registrar General, the child

(a) has a substantial connection with the Province, and

(b) would suffer a hardship if the Registrar General refused to consider the application.

34.1( 3) An application under this section shall be submitted to the Registrar General on a form provided by the Registrar General and shall include

(a) if the child is 12 years of age or older,

( i) a written statement made by the child that the requested sex designation is consistent with the gender with which the child identifies and the child is currently living in a manner consistent with the requested sex designation and intends to continue to do so, and

( ii) the written consent of the child, on a form provided by the Registrar General, and witnessed by a person authorized to solemnize marriages under the Marriage Act or a health professional prescribed by regulation,

(b) a written statement from a health professional prescribed by regulation who has treated, evaluated or consulted with the child that confirms that the sex designation of the child is inconsistent with the gender with which the child identifies, that the child has the capacity to understand the nature and consequences of the requested change and, as a result, that the sex designation of the child should be changed,

(d) the written consent of all other parents of the child on a form provided by the Registrar General or, if there are no other parents of the child, confirmation that there are no legal proceedings ongoing in relation to the parentage or custody of the child, and

(e) any other document or other evidence that is prescribed or that is required by the Registrar General.

34.1( 4) Despite subsection (3), the Registrar General may consider an application under this section if an applicant does not fulfil the requirement in paragraph (3)(d), but the applicant provides documentation satisfactory to the Registrar General that

(a) the applicant notified all other parents of the child of the application and of the parents’ right to object to the change in the sex designation of the child, and

(b) the applicant has provided an affidavit of service showing that a written consent form has been served personally on all other parents of the child or provided documentation showing that a consent form was sent to the other parents by registered mail and that the other parents received the consent form.

34.1( 5) The Registrar General shall not proceed with an application under this section if

(a) subparagraph (3)(a)(ii) applies and the applicant is unable to provide the required written consent of the child 12 years of age or over,

(b) the applicant did not notify all parents of the child who are required to be notified under subsection (4), or

34.1( 6) If the Registrar General does not proceed with an application in accordance with subsection (5), the Registrar General shall give, within 30 days after receipt of the application, the applicant written notice

(a) that the Registrar General is unable to proceed with the application, together with a brief explanation, and

(b) that the applicant may proceed by applying under section 34.5 within 90 days after receipt of the notice to a judge in the judicial district in which the child resides.

34.1( 7) Despite subsections (3) to (5), an applicant may make an application to the court to dispense with the consent of a parent required under this section and a judge of that court, having regard to the best interests of the child, may dispense with the required consent and the Registrar General shall comply with the decision of the judge.

34.1( 8) If a child has sought the consent of a parent required under this section and that parent objects to the change in sex designation and has refused to consent, the child may apply to the court for an order respecting the change of sex designation and the Registrar General shall comply with that order.

Objections to application, decision of Registrar General

34.2( 1) A person who has been notified by an applicant of an application to change the sex designation of a child may object to the application in writing to the Registrar General within 30 days after the date of service or date of reception of the notice, as the case may be.

34.2( 2) A person who establishes to the satisfaction of the Registrar General a substantial interest in an application to change the sex designation of a child may object to the application in writing to the Registrar General within 14 days after the day on which the application was received by the Registrar General.

34.2( 3) On receipt of an objection that does not establish a prima facie case against the granting of the application under section 34.3, the Registrar General shall dismiss the objection and immediately, by registered mail, give written notice of the dismissal to the objector.

34.2( 4) On receipt of an objection that establishes a prima facie case against the granting of the application under section 34.3, the Registrar General shall immediately cause a copy of the objection to be served personally on the applicant.

34.2( 5) Within 14 days after receipt of the copy of an objection under subsection (4), the applicant shall cause a written reply to the objection to be served personally on the Registrar General.

34.2( 6) The Registrar General shall issue a decision on the granting of an application

(a) within 30 days after the receipt of a reply under subsection (5), or

(b) if there is no reply under subsection (5), after the expiration of the 14-day period referred to in subsection (5).

34.2( 7) The time limits set out in subsection (6) in respect of the issuance of a decision by the Registrar General may be extended by the Registrar General with the consent of the applicant.

34.2( 8) This section does not apply to an application after the Registrar General has notified the applicant under subsection 34.1(6).

Granting of application

34.3 The Registrar General shall not grant an application to change the sex designation of a person under section 34 or 34.1 unless the Registrar General is satisfied that this Act and the regulations have been complied with and that the person has not requested frequent changes in his or her sex designation.

Duties of Registrar General when application is granted or refused

34.4( 1) If an application to change the sex designation of a person under section 34 or 34.1 is granted, the Registrar General shall immediately

(a) if the person was born in the Province,

( i) register the change of sex designation by making a notation on the birth registration of the person so that the sex designation corresponds to the requested change,

( ii) make a notation on the person’s registration of marriage, if any, so that the indication of the person’s sex on the registration corresponds to the requested change, if the person was married in the Province, and

( iii) issue a birth certificate to the person, or

(b) if the person was born outside the Province,

( i) issue a change of sex designation certificate to the person,

( ii) notify the person responsible for the registration of births in the jurisdiction in which the person was born of the change of sex designation of the person, and

( iii) make a notation on the person’s registration of marriage, if any, so that the indication of the person’s sex on the registration corresponds to the requested change, if the person was married in the Province.

34.4( 2) A change in the sex designation of a person born in the Province made under this Act is not valid until it is registered by the Registrar General under subparagraph (1)(a)(i).

34.4( 3) Every birth certificate or marriage certificate issued after the making of a notation referred to in paragraph (1)(a) shall be issued as if the registration had been made with the sex designation as changed.

34.4( 4) A person who is in possession or control of a certificate of birth of a person before a notation referred to under subparagraph (1)(a)(i) has been made shall return it to the Registrar General immediately for cancellation.

34.4( 5) If an application to change the sex designation of a person is refused, the Registrar General shall immediately give, by registered mail, written notice of the refusal to the applicant and to all objectors, together with a brief statement of the reasons for refusing the application.

34.4( 6) A person who was born in the Province and whose sex designation was changed while ordinarily resident outside of the Province in accordance with the laws of another jurisdiction in which the person was resident shall be entitled, on production of satisfactory proof of the change in the sex designation and the identity of the person, to the identical change in the sex designation on the birth registration of the person in the records kept under this Act.

Notice of Application when Registrar General unable to proceed with an application

34.5( 1) Within 90 days after receiving notice from the Registrar General under subsection 34.1(6) that the Registrar General is unable to proceed with an application, an applicant may apply by Notice of Application to the appropriate judge referred to in that subsection for the identical change of sex designation requested in the application.

34.5( 2) If making an application to a judge under subsection (1), the applicant shall cause the Notice of Application to be served personally on the Registrar General and on all parties to the application.

34.5( 3) On being served with a Notice of Application, the Registrar General shall deliver to the clerk of the court all documents in the possession of the Registrar General that relate to the application.

34.5( 4) The parties to an application are

(a) the applicant,

(b) all objectors,

(c) if the subject of the application is a change in the sex designation of a child who is 12 years of age or older, the child, and

(d) all other persons who are found by the judge to have a substantial interest in the application.

34.5( 5) The judge shall determine whether all parties to the application have been served with the Notice of Application and if, in the judge’s opinion, they have not, the judge shall

(a) order the Notice of Application to be served on those persons that the judge directs and adjourn the proceedings to allow those persons to be given adequate notice of the application, or

(b) order that service of the Notice of Application be effected by substituted service in the manner specified by the judge or that service be dispensed with.

34.5( 6) In hearing an application, the judge

(a) shall consider the documents referred to in subsection (3), which shall be included in the record before the judge,

(b) may admit any oral or written evidence that is relevant, even if it would not be admissible under the rules applying to trials in the court,

(c) shall give all parties full opportunity to present evidence and make representations, personally or by counsel or agent,

(d) may examine or cross-examine any party or permit any party to be examined or cross-examined, and

(e) may order that the consent of any person required under this Act be dispensed with.

34.5( 7) The judge shall not issue an order granting an application for a change in the sex designation of a child unless the judge is satisfied that this Act and the regulations have been complied with and that the applicant has not requested frequent changes in the sex designation of the child.

34.5( 8) On the judge issuing an order in respect of an application for a change in the sex designation of a child, the clerk of the court shall

(a) enter the order as a judgment of the court,

(b) send a certified copy of the order by registered mail to the Registrar General and to each of the parties to the application, and

34.5( 9) Subject to subsection (10) and to the extent that they are not inconsistent with this section, Rules 38 and 39 of the Rules of Court apply to an application made under this section.

34.5( 10) Rules 38.06, 38.06.1 and 38.09 do not apply to an application made under this section.

34.5( 11) The Registrar General shall file a copy of an order received under paragraph (8)(b) in the office of the Registrar General and

(a) if the order grants the application for a change in the sex designation, the Registrar General shall immediately follow all other applicable procedures set out in section 34.4, or

(b) if the order refuses the application for a change in the sex designation, the Registrar General shall follow the procedure set out in subsection 34.4(5).

2( 4) Subsection 39(1) of the Act is amended

(a) by repealing paragraph (d);

(b) in paragraph (e) of the English version by striking out the “and” at the end of the paragraph;

(d) by adding after paragraph (f) the following:

(g) any other particulars prescribed by regulation.

2( 5) Section 52 of the Act is amended by adding after paragraph (j.1) the following:

(j.11) prescribing health professionals for the purposes of sections 34 and 34.1;

(j.12) prescribing the documents and other evidence referred to in paragraphs 34(2)(c) and 34.1(3)(e);

(j.13) prescribing particulars in a certificate in respect of the registration of birth issued under section 39;

Commencement

3 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.