In a recent Ontario Court of Justice decision, the Court addressed whether one parent can prohibit the other from changing their children’s last name.

What Happened?

The mother and father had lived together from November 2009 until October 2015.

Following the separation, the mother filed for custody and child support, and the father filed for joint custody and equal parenting time.

Initially the father was granted access to the children in a supervised access centre; however, throughout the first year of this arrangement, his access to the children gradually increased and the need for supervision was eventually eliminated.

By December 2016, the parties resolved the financial issues stemming from the separation. In March 2017, the court granted the mother custody of the children and increased the father’s temporary access to one overnight each weekend.

By July 2017, the parties resolved most major parenting issues. The mother was allowed to move the children to Barrie, Ontario, and the father’s access was further increased to alternate weekends and extended holidays.

The remaining issue was the mother’s outstanding wish to change the children’s last name to be the same as hers. When this issue arose, the father amended his original claim to also include a request that that mother be prohibited from changing the children’s last name. He argued that the mother wanted the name change in order to marginalize his involvement with his children. He also claimed that she has made efforts to freeze him out before, by denying him access in early 2016, resisting his requests for increased access, and wanting to move the children to Barrie.

The Authority of a Court to Order a Name Change

This question of whether a court can order a name change has been addressed in the past. In 2013, a judge found that:

The Ontario Court of Justice does not have jurisdiction to make an order changing a child’s name.

In that decision, the court noted that there was nothing in the law that give a court the power to order the Registrar General of Ontario (the entity responsible for legally changing names in the province) to change a name. In addition, the court also does not have the legal authority to act as “parens patriae”, that is, to act as the legal protector of citizens who are otherwise unable to protect themselves.

This case, however, was slightly different. Here, the court was not being asked for an order changing the children’s name. Rather, it was being asked to prohibit a person from changing their children’s names as an incident of custody.

Changing a Name in the Child’s Best Interest

This issue was squarely addressed in a 2000 Family Court case, where Justice Nelson found that the court could prohibit a party from changing a child’s name as an incident of custody. As with many issues in family law involving children, the legal test is whether such a prohibition would be in the child’s best interest.

Justice Nelson noted that changing a child’s last name is not just an administrative act. A last name is part of a person, and speaks to who that person is, so the court takes it very seriously. The court must also consider what parents agreed to name their children at birth.

Past cases have set out factors for the courts to consider when deciding whether prohibiting a name change is in the child’s best interest. The factors include the following:

  1. Whether the proposed name change will exclude the name of the non-custodial parent;
  2. The length of time a custodial parent has had sole custody of the child;
  3. Whether there is a continuing close relationship between the non-custodial parent and the child;
  4. Whether there would be any serious effect on the non-custodial parent;
  5. Whether either parent has displayed any malice or improper motivation;
  6. The age of the child and the weight to be given to the child’s wishes, considering that age;
  7. The length of time the child has had its name; and
  8. The surnames of any siblings.

The Decision

In this case, the court noted that it was clear that the mother does not hold the father in high regard, however, the court did not believe that she was trying to marginalize him from the children. The court ultimately found that she was acting in good faith with respect to the name change.

The court went on to weigh the factors in favour of prohibiting the name change against the factors in favour of allowing the name change, and found that the proposed name change would be in the children’s best interest.

The mother had argued the following:

  1. The children are mixed race and do not share her last name. She has had to go through great lengths to prove to service providers that she is, in fact, their mother;
  2. She has been the primary caregiver and custodial parent since the parties’ separation. She makes major decisions for the children in a responsible manner, and evidence supports that this decision is a responsible one as she seeks only to add her own surname, not remove their father’s surname;
  3. The father had submitted that it is an important part of the children’s identity to have his last name, as it represents the close and important relationship he has with them. By the same token, it should be equally important for the children to share their mother’s surname.

The mother was permitted to change the children’s last name, but was prohibited from changing them further, without written consent from the father.

Lessons Learned

The best interests of a child is a fundamental guiding principle in Canadian family law.  Where there are any disputes around custody and access, following  a separation or divorce, the court will always make their decision with this principle in mind.  This principle also applies to any other disputes involving or the children of the marriage, such as, in this case, a name change. A parent’s rights and interests will always be second to those of their children. As such, even if a parent thinks they know what is best for their child, the court will consider the impact of any decision on that child, and will decide accordingly.

The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients with their family law matters. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.