Hardly any parent can imagine when their child is born that they may get involved in a heated custody dispute over their new precious gift. As a result, parents often do not pay much mind to the child’s last name and often simply follow the tradition of using the father’s last name or perhaps a hyphenated last name. As circumstances change, a parent may want to change their child’s last name, or even first name, for a number of reasons.
Section 5 of the Change of Name Act, R.S.O. 1990, c. C.7 (the “Act” ) which deals with changing a child’s name was most recently amended in 2010
by including amendments made to the Children’s Law Reform Act.
The Act provides that a person with lawful custody of,
- a) a child whose birth was registered in Ontario and who is ordinarily resident there; or
- b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made,
may apply to the Registrar General to change the child’s forename or surname or both, unless a court order or separation agreement prohibits the change.
The application to change a child’s name requires the written consent of,
- a) any other person with lawful custody of the child;
- b) any person whose consent is necessary in accordance with a court order or separation agreement;
- c) the child, if the child is twelve years of age or older.
The person applying to change the child’s name must give notice of the application to every person who is lawfully entitled to access to the child. In this regard access parents that do not have legal custody of the child have very limited rights under the legislation. Unless a court order or custody agreement states that the custodial parent is prohibited from changing a child’s name, the parent without legal custody of the child does not need to provide consent for the name change. The access parent without custody is only required to be provided notice of the proposed name changed. The access parent’s only real recourse once being notified of the proposed name change is to negotiate a change to any current custody agreement or to apply to court to prevent the name change by arguing for a change in custody and or arguing that the proposed name change is not in the best interests of the child.
As in any case involving children, the court determines an application for a name change in accordance with the best interests of the child. One common factual scenario arising more often is where a parent has joint custody of a child and would like to change the name of the child to be hyphenated. In that case the parent seeking the name cha
nge has the onus to prove that the name change is in the best interests of the child.
Some common factors that the court will consider for the best interest of the child test are: the age of the child; the length of time that the custodial parent has had sole custody of the child; whether there was a continuing close relationship between the child and the access parent; whether there were any siblings of the child and, if there were, the last name used by the siblings; the motivation behind the name change such as whether a parent was trying to change the last name of the child to that of that parent’s new spouse to reduce ties with the biological parent.
At times parents will oppose a name change by arguing that the name change would confuse the child because their last name would then be different from that of a parent and as a result, their half siblings. This type of argument is a difficult one to make successfully as the courts have recognized the common place of blended families and mother’s keeping their maiden names after marriage which has resulted in many children not sharing the same last names as both of their parents and step siblings.
If you are involved in court proceedings or negotiating a custody agreement involving your child and you would like the child’s name to remain unchanged, then be sure to include a term prohibiting a name change in your court order or custody agreement. Otherwise, your child’s name may be changed with little legal recourse.
Yaroslav Diduch is a partner within Lancaster, Brooks & Welch LLP, Family law department and he may be reached by calling 905-641-1551