This issue arises frequently after a brief relationship or marriage which results in the birth of a child. An example of this conflict is a mother seeking at the outset after separation trying to expunge any reference to the birth father’s surname. The law with respect to this is governed by the Vital Statistics Act and highlights the importance of the Statement of Live Birth required thereunder.
Some mothers have registered their children in this fashion excluding any reference whatsoever to the birth father. At one time, the law appeared to be that such a registration was final. In a recent Ontario Superior Court decision Garland v. Brouwer, the court had to deal with such a situation to determine the appropriate surname of the parties two year old child. In that case, the mother unilaterally completed the Statement of Live Birth and made no reference to the father and had given the child her surname. The father who had remained active in the child’s life both financially and by way of access, asked for a hyphenated surname to be imposed. Nonetheless the court for various reasons including exercising its Parens Patriae Jurisdiction 1ordered that the child’s surname be amended to include a hyphenated surname.
Another important law is the Change of Name Act. Pursuant to section 5 of that Act, a person with lawful custody of a child may apply to the Registrar General to change the child’s surname, unless a court order or separation agreement prohibits the change. Only if the separation agreement requires the consent of the other, need the sole custodial parent seek the consent of the other. In other words, if you were concerned that your now estranged spouse who is about to be granted sole custody may change the surname of the child, you should attempt to have included in any court order or separation agreement a provision that bars this.
Parens Patriae Jurisdiction – the state in its capacity as provider of protection for those who are unable to care for themselves. Alternatively, the state is the ultimate parent.