An Ontario court recently grappled with the interesting question of when it is and is not appropriate for a parent to be prohibited from changing the name(s) of their children after a separation. As we’ve explored previously, this is often a source of tension for separating parents. In this case, the court allowed the mother of the children to change their names, despite the father’s request for an order prohibiting her from doing so.

What Happened?

The parties began living together in November 2009, and separated in October 2015. They had three children together, aged 6, 4 and 3. The mother also had two children from a previous marriage, who were aged 13 and 16.

The parties had already resolved all parenting and financial issues. However, there was one issue that remained: the mother wished to change the children’s names. The father did not want this to happen and asked the court to prohibit the mother from changing the children’s names.

The parties agreed to a focused hearing on this final matter.

Changing a Child’s Name in Ontario: The Law

Section 28(1)(b) of the Children’s Law Reform Act (CLRA) gives the Ontario Court of Justice statutory authority to determine any aspect of the incidents of the right to custody or access. Under this section of the act, the court can prohibit a party from changing a child’s name as an incident of custody. In such cases the test is whether or not such an the order would be in the child’s best interests.

Section 5(1) of the Change of Name Act permits a custodial parent to apply to the Registrar General to change a child’s name, unless a court order or separation agreement prohibits the change. As a result, the parent who is contesting a name change (in this case, the father) must seek an order prohibiting such a change.

Courts must consider a whole host of factors in determining whether a prohibition of a name change is in a child’s best interests. These factors include:

• 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 his/her name.
• The surnames of any siblings.

The Court’s Decision

In this case, the court set the stage by explaining that a child’s surname is important, as it “speaks to who the person is, and is not simply a convenient means of identification.”

When it considered the facts of this specific case, the court found that the mother was acting in good faith with respect to the proposed name change. The court noted that it was understandable that the mother would like the children to share her surname, as she wanted them to be publicly identified as much as her children as those of the father.

While the father submitted that the proposed name change would diminish his connection with the children, the court determined that there was no objective evidence to support this allegation. As the mother did not seek to eliminate the father’s surname (rather, she only sought to add her own), the court found that the proposed name change would not have a serious adverse effect on the father.

The court also determined that changing the children’s names would not be confusing to third parties associated with the children. It noted, for example, that medical professionals and service providers could amend their records without difficulty, and that friends could just be told about the change.

In balancing the parties’ positions, the court considered some factors that did support the father’s claim that the order he was seeking was in the children’s best interests, including:

• The children had always had his last name.
• There may be some short-term adjustment for the children as they adapted to a new name.
• The parties agreed to the children’s names at birth.

However, the court determined that the above-noted factors were outweighed by other considerations, including:

• The children were of mixed race and did not share the mother’s surname. As a result, there was some risk of the children’s medical treatment being delayed, and there was also a real risk of delay and difficulties when crossing the border with the children, as the mother was often required to go to great lengths to explain that she was their mother. None of this was in the children’s best interests, and could be remedied if the children shared the mother’s surname.
• The mother had been the children’s primary caregiver and their custodial parent since shortly after the parties’ separation. The evidence supported a finding that her desire to change the children’s surnames was a responsible decision.
• It was an equally important part of the children’s identity to be able to share in their mother’s surname, to reflect the closeness of their relationship with her.

In the circumstances, the court concluded that it was in the children’s best interests not to prohibit the proposed name changes by the mother.

Lessons Learned

There are many factors a judge will consider if you or your ex-spouse wish to prohibit one another from changing a child’s name after a separation or divorce. At Gelman & Associates, we can help you understand your rights and navigate the court system. In addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for a confidential initial consultation.