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It’s natural for divorced or separated parents to disagree over how certain elements of raising their children are handled. Some issues may seem small in nature, but others can be larger and come with long-lasting impacts. In an example of the later, an Ontario mother recently wanted to change the name of the children she had with her former partner, which landed the couple before the Ontario Court of Justice.

The background

The mother and father began living together in April 2010. They had two children, born in 2010 and 2012. They separated in 2015. The mother received sole custody of children, who were both given the last name of the father at birth. The father has access to the children on alternate weekends as well as one weekday visit each Tuesday from November to April.

Following the order outlining custody and support, the mother made applications to the Registrar General to change the children’s surnames. The father did not reply to the request, but did bring an application for a prohibition on changing their names.

The father’s position

The father argued that the issue of the children’s names had never been an issue before the applications were made. The father said the mother’s request was an intent to “push his name out” of the children’s lives. He said he felt changing their last names would result in confusion and could lead to the children thinking badly of him. The father had not seen that the mother sought to change their last names in a way that included his, by adding her name and not removing his. He did not consult with the mother, in part because he was under terms of an order to have no contact with her following a trial for assault, failure to comply, and mischief related to his treatment towards her.

The court’s analysis

The court stated that it has the authority to make orders with respect to changing the children’s names, and that jurisprudence had set out the following factors it should consider in such an instance. They are:

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

In this case, the court highlighted that the mother and father had not been married, and the mother had continued to use her name while the parents were still together. Additionally, the older child had already started using a combination of the parents’ names, something her school had no issue with. The mother has taken on almost all the responsibility associated with raising the children, with the father having fallen thousands of dollars behind in child support. The court found no improper motivation in her desire to change the children’s names and granted the request.

At Gelman & Associates, our lawyers can provide you with the necessary expert counsel so that you fully understand the nature of your family law issues and ensure that your rights are protected. With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga North York and Scarborough, we are just a short distance away in any direction. Call us at (844) 769-0737 or  1-844-769-0737 or contact us online for a confidential initial consultation.

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