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
(c)
return the documents referred to in subsection (3) to the Registrar General.
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).