What Happens When, Post-Divorce, a Parent Changes Their Child’s Name Without the Other Parent’s Permission?

A Nova Scotia court recently explored a dispute between two divorced parents, in which the father claimed that the mother had forged his signature on a government form and changed the last name of their child without his permission.

The Name Change: What Happened?

The child in question was born in 2009. At the time, he was given the surname of Baker (the last name of his father). In 2012, the child’s name was changed to Aboud, which is the current surname of his mother and her new husband.

The name change was a result of an application to Vital Statistics (i.e- the government branch responsible for name changes) that was filed by the mother, which had been accompanied by a consent form allegedly signed by the father and witnessed by a witness.

The father denied signing the consent form, and claimed that his signature was forged. He filed an application to dispense with the mother’s consent so that the child’s last name could revert back to Baker. The father wants the child to share his last name.

The mother and her new husband denied forging the father’s signature, and argued that he had voluntarily signed the necessary consent in the presence of a witness. The mother wants the child to have the same last name as she and her new husband.

The witness denied watching the father sign the consent form, that she had never met him prior to the hearing in this matter, and that she had signed the form at the request of the mother.

Did the Father Prove His Signature Was Forged?

The burden of proof was on the father to establish that his signature had been forged. He had to establish, on a balance of probabilities, that he had not signed the consent form.

The judge ultimately found that the father had established that he had not signed the consent form, basing her decision on a number of factors, including:

• The father firmly believed that the child’s surname ought to be Baker, which is the surname the child was given at birth;
• The father would never have cooperated in a process that was intended to change the child’s surname- any such change would undermine his position as the child’s father;
• The father was credible and truthful throughout the proceedings;
• The alleged witness never witnessed the father sign the consent form. Rather, the judge accepted the witness’ evidence that she had never met the father prior to attending the hearing, and that she had signed the consent form at the daycare where she worked at the mother’s request;
• The mother changed the child’s surname because she wanted to “elevate her [new] husband’s status as [the child’s] father” since he had (in the mother’s words) “…been with me and [the child] since [the child] was two moths old, playing a large role in raising [the child], the same role a father would play”;
• The mother previously attempted to hide the child’s name change from the father, which she would not have had to do had the change been consensual;
• Once the father discovered the name change, the mother attempted to “negotiate a name change”, which, again, she would not have had to do had the change been consensual;
• When the father discovered the name change he contacted a lawyer, contacted the government department responsible for name changes, and contacted the police. Each of these steps was time consuming, and would not have been necessary if the name change had been consensual;
• The mother and her new husband were not credible or truthful witnesses, where their evidence conflicted with that of the witness and of the father, it was rejected
• The story of the mother and her new husband did “…not have an internal consistency or logical flow, nor [was] it in harmony with the preponderance of probabilities which a practical and informed person would find reasonable”

Should the Consent of the Mother be Dispensed With so that the Child’s Name Could Revert to “Baker”?

The Judge found that it was in the child’s best interests to have the hyphenated name of Aboud-Baker.

The father had argued that it would be in the child’s best interests to revert the child’s name back to Baker for a number of reasons, including:

• The fact that his signature was forged and the child’s name had been illegally changed;
• The mother should be punished for her actions;
• The child was known as Baker in the father’s home and by the father’s family, he would not be confused by the change back to Baker;
• The father would have considered a hyphenated name had the mother not engaged in “deceitful conduct”.

The mother argued that it would not be in the child’s best interest to have his name changed back to Baker. If a change had to be made, the name should be changed to Baker-Aboud. Her position was based on a number of reasons, including:

• The child is known as Aboud at school and amongst his friends, and it would be hard to explain a name change;
• Her new husband had assumed a fatherly role in the child’s life;
• She is the child’s custodial parent, and he should share the same last name as she and her new husband.

The importance of a child’s last name has been recognized by many family law courts, as well as by the Supreme Court of Canada, which has said that:

Including one’s particulars on a birth registration is an important means of participating in the life of a child. A birth registration is not only an instrument of prompt recording. It evidences the biological ties between parent and child, and including one’s particulars on the registration is a means of affirming these ties. Such ties do not exhaustively define the parent-child relationship. However, they are a significant feature of that relationship for many in our society, and affirming them is a significant means by which some parents participate in a child’s life.

… Contribution to the process of determining a child’s surname is another significant mode of participation in the life of a child. For many in our society, the act of naming a child holds great significance…naming is often the occasion for celebration and the surname itself symbolizes, for many, familial bonds across generations…

… a father’s ability to include his particulars on a child’s birth registration and to contribute to the process of determining the child’s surname can reasonably be perceived to be modes of meaningful participation in a child’s life. As a further consequence, arbitrary exclusion from such means of participation negatively affects an interest that is significant to a father…

Family law courts have recognized various instances in which it was in a child’s best interests to have a hyphenated name so that the child’s relationship with both parents could be demonstrated and recognized.

Other relevant factors that a court may consider in determining an appropriate surname include:

• The short term and longer term effects of any change in the child’s surname;
• Any embarrassment a child may feel in having a different surname that their custodial parent;
• Any confusion of identity that may arise if the name is changed;
• The effect of a name change on the relationship with the parent whose name the child shared during marriage;
• The effect of frequent or random name changes on the child.

The Judge adopted a child-focused analysis in coming to her final decision, and noted a number of things:

• Although the mother’s behavior had been “devious, manipulative, and indefensible” the Judge had to focus on the child, not punish the mother for her actions;
• The child was used to being called both Aboud and Baker and identifies with both last names;
• Despite the conflict between the parents, the child appeared to be doing well, and there was little evidence to suggest that he would suffer emotional harm, confusion, or embarrassment if he had a hyphenated name;
• The child must share his father’s surname because it was his birth name, and one of the ways in which the child identified with his father was through that last name;
• The child must share his father’s last name because it would underscore the importance of their relationship: “Mr. Baker is [the child’s father]. Mr. Aboud is not”;
• The child must share his mother’s surname because he also identifies with her and with the surname Aboud;
• The “status quo” (i.e- the name Aboud) was unlawfully obtained and cannot afterwards be used as justification to refuse the father’s request.

Costs

In addition to ordering the child’s name to be changed to Aboud-Baker (not Baker-Aboud as the mother had requested), the Judge also ordered the mother to pay the father $1000 in costs, which included the Change of Name application fees.

Lessons Learned

Much like family courts always consider the best interests of the child, it is also prudent for separating or divorcing parents to likewise keep the best interests of their children in mind during family law disputes.

It is never worth it for parents to engage in unreasonable, deceptive, or manipulative behaviour in furtherance of their own interests. Parents should always think about how their short-term actions will affect their children in the long run. Ultimately, parents must also remember that anything that they do during the course of a family law dispute will be scrutinized by a judge, and may ultimately affect how that court assesses you as a parent in their determination of best interests of the child.

If you have questions about custody and access, making changes to your child’s status quo, or any other family law issue, please contact the experienced Toronto family lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.