Your average reader would be surprised to learn that when one parent has sole custody of a child pursuant to either a court order or separation agreement, they have the unilateral ability to simply apply to a provincial government agency (The Registrar General) to change the surname of the child. They do not require the consent of the other parent.
Accordingly, it is important that a provision is made that consent is required either in a separation agreement or in a court order.
However that does not bring matters to an end.
As recently pointed out in a decision of the Ontario Court of Justice (Family Court) of Justice Finlayson in Pastranv. McDonough, even when there is a separation agreement granting the parties joint custody and agreement contains a provision that the child’s surname not be changed, the court the still has the ability to re-open the point.
In this case, even although the parties had signed a separation agreement less than two years ago, the mother now asks the court to change the child’s surname to a hyphenated one so as to include her maiden surname.
The reason given by the mother is that whenever she deals with various agencies such as crossing the border, hospitals and schools, she needs to prove time and again that she actually is the birth mother of the child. This causes her stress which in turn causes her child stress. Also, the mother wanted her cultural background partially reflected in the child’s surname. Lastly, the mother was about to have a new child with a different partner and wanted some link in the child’s surname.
Father strongly objected, especially in light of the fact that the parties had just agreed on what the child’s last name would be.
In this case, the court did agree that the child’s last name should be changed.
The court looked at what the legal basis was in this case. The starting point is of course The Change of Name Act. Only in those circumstances where the parties have joint custody pursuant to an order, agreement or where the agreement requires the consent of another person to change the surname of the child does the court become involved when consent is not granted.
The court that one must apply to is the Ontario Court of Justice (Family Court). The only real test is what is in the best interest of the child. This legal motivator is repeated over and over in all cases dealing with legal decisions affecting a child.
The court does not have jurisdiction as set out in Beenko v. Torakto change the name of the child unless the situation as set out above applies.
So be careful from both ends of this problem. If you grant the other parent sole custody of the child and do not make provisions for the change of name, you could find yourself with an offspring having a different last name than yours. Alternatively, once joint custody is granted, the court may apply very loosely what the best interest of a child may be and you may end up with a decision that you are not happy with. Good legal advice as always is crucial.