Surname Disputes: Can a Parent Change a Name Chosen at Birth?

• 
  Aaron Ender
  Lawyer
• 
  Lucas Rambaran
  articling student

In some cases, a parent may have selected the child’s surname shortly after birth without the other parent’s participation. While this may be permitted under the Vital Statistics Act (“VSA”), it is not immune to being changed in the future. As many parents involved in surname disputes discover, a child’s name as registered at birth is not necessarily permanent.

Disputes concerning a proposed surname changes are often determined through the Children’s Law Reform Act (“CLRA”).1 The CLRA permits a parent to apply to the Court for an order changing the child’s surname to a surname that could have originally been assigned under the VSA. This includes, in appropriate circumstances, a surname that hyphenates the surnames of both parents.

Importantly, section 17(3) of the CLRA further provides that a Court may only grant such an order if it is in the “child’s best interests”.2 The “best interests of the child” requirement thus reflects one of the foundational principles of Ontario family law. Rather than focusing on parental preferences or competing claims to a surname, this principle requires the Courts to consider whether the proposed change would best promote the child’s welfare, identity, stability, and overall well-being. As a result, even where one parent has unilaterally registered a child’s surname at birth, the Court may revisit that decision if doing so would better serve the child’s best interests.

What Does “Best Interests of the Child” Mean?

Section 24(3) of the CLRA provides the Courts with an accurate framework to use when determining a child’s best interests.3 Although every case turns on its own facts, a Court may consider several factors including:

· The child’s age, stage of development, and need for stability;

· The strength of the child’s relationship with each parent;

· The child’s relationships with siblings, grandparents, and other important people in their life;

· Each parent’s willingness to support the child’s relationship with the other parent;

· The history of the child’s care and upbringing;

· The child’s views and preferences, where they can be determined and are age-appropriate;

· The child’s cultural, linguistic, religious, and family heritage;

· The plans each parent has for the child’s future care;

· Each parent’s ability and willingness to meet the child’s needs;

· Each parent’s ability to communicate and cooperate on matters affecting the child;

· The existence of any family violence and its impact on the child; and

· Any civil or criminal proceedings that may affect the child’s safety, security, or well-being

With regard to surname disputes, these factors require a Court to take a child centered approach. Ultimately, it is the Court’s task to determine whether the proposed change advances the child’s best interests, rather than the interests of either parent.

How Do Ontario Courts Approach Surname Disputes?

In many disputes, a parent seeking a surname change will argue that the child’s name should reflect their relationship with both parents. On the other hand, the parent opposing the change may argue that the child has already developed an identity associated with their existing surname and that changing it would create unnecessary disruption.

Neither position automatically prevails.

Instead, the Courts undertake a highly fact specific inquiry that remains focused on the child rather than either parent. The cases below demonstrate how the best interests analysis has been applied in practice.

In Gallant v. Lewis,4 the Court was prepared to intervene where the father maintained a meaningful and active role in the child’s life but had not been included in the original birth registration process. The Court ultimately concluded that recognizing the child’s connection to both parents justified amending the surname. Notably, Quinn J. expressed concern that denying an involved parent meaningful recourse could effectively reduce that parent to a “second class parent”, a result the Court found inconsistent with the child’s best interests.5

However, the result will not always favor a surname change. In R.K. v. M.S.,6 the Court refused a father’s request to add his surname to that of his six year old daughter. The child had used her existing surname for several years, shared that surname with her siblings, and had already established an identity associated with it. In those circumstances, the Court found that maintaining stability and continuity better promoted the child’s welfare.

These decisions demonstrate that Courts are not concerned with rewarding one parent or recognizing parental rights. Rather, the analysis remains focused on the practical impact that a surname may have on the child’s life.

More recently, courts have also recognized that a surname may play an important role in a child’s cultural identity and family heritage. In Remedios v. Teeple,7 the Ontario Superior Court approved

a hyphenated surname after finding that it appropriately recognized both parents and strengthened the child’s connection to their cultural background. Similarly, in Pastran v. McDonough,8 the Court concluded that a hyphenated surname would benefit the child by recognizing the child’s relationship with both parents and reinforcing the child’s connection to a growing blended family that would soon include a half-sibling.

Taken together, these decisions reinforce a consistent theme throughout Ontario family law, being that a child’s surname is more than a legal label. A surname may reflect family relationships, cultural heritage, personal identity, and a child’s sense of belonging. Accordingly, the Courts will focus on whether a proposed surname change enhances those interests rather than the preferences of either parent.

Overall

A parent is not necessarily bound by a child’s surname as registered at birth. Ontario legislation and case law permit a parent to seek a change to a child’s surname, including the addition of his surname through hyphenation, provided the proposed change is in the child’s best interests. The determining factor will not be the unilateral registration of the surname, but whether the requested change promotes the child’s welfare, identity, and relationship with both parents.

This article was written by Family Law Lawyer Aaron Ender and Articling Student Lucas Rambaran.

If you require assistance with any Family Law matter, speak to a Family Lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666.