Father's rights in the Naming of their Child

The naming of a child establishes biological ties between the parents and the child. A surname often holds great significance, as it is creates familial bonds across generations. 

In Ontario, and elsewhere in Canada, a Mother can choose to not acknowledge the identity of the father when registering the child and choosing a name.  This is pursuant to s. 10(3)4. of the Vital Statistics Act. The unfairness of this provision was acknowledged in the Supreme Court of Canada case of Trociuk v. B.C.(A.G.), [2003] 1 S.C.R. 835. In that case the court was focused on the rights of fathers to participate in the naming process after birth under the Vital Statistics Act of British Columbia. Like Ontario, the BC Act gave the mother the arbitrary power to leave the father's name off of the birth certificate.

The Supreme Court concluded that allowing mothers to arbitrarily exclude fathers from the process violated the equality rights of fathers under s. 15(1) of the Canadian Charter of Rights and Freedoms.  In that case, it was in the best interest of the child to have the father included on the registration certificate and be involved in the naming decision.

It should be noted that some circumstances exist where it is both fair and reasonable for a father to be excluded in the birth registration process. These are situations where the father was abusive, threatening, or the child was a consequence of rape. These valid objectives of providing mothers the power to exclude fathers must be separated from situations where the choice to exclude Dad was arbitrary and unwarranted. 

The case of Trociuk is significant in that it acknowledges the equality of fathers and the importance of a child's name in establishing a genetic bond between father and child.* Justice Quinn of the Ontario Superior Court in the case of E.G. v. S.R., [2008] O.J. No. 2913, described the situation in the following terms:

• Para. 25 "The right of the mother to arbitrarily exclude the father in the naming of their child is a breathtaking example of sexual discrimination, leaving the father without recourse (short of the application launched) and rendering him a second-class parent."

In many of the cases dealing with the problem of "unacknowledged fathers", the court used its Parens Patriae jurisdiction to change the child's name by including the father's last name where it was excluded on the birth certificate. In Ontario, applications to change a child's name can also be brought under s. 17(1) of the Children's Law Reform Act after a declaration of parentage has been made. The test to be applied, in both instances, is the best interests of the child.

In the absence of evidence of abuse, abandonment, denial of paternity, or rape, the courts will generally approve a change of name where the father's name was excluded arbitrarily by the mother (see the case of Ryan v. Scott, (2011) ONSC 3277). This is based upon the importance of the child's surname affirming the biological ties between both parents whose status is presumed to be equal in the life of the child.

The best interests test, above, applies mainly to younger children who are too young to form a strong opinion on their name. Considerations for older children are certainly relevant but beyond the scope of this blog post. In addition to the age of the child and his or her relationship to each parent, the court may look at the names of siblings, whether child support is being paid, and other factors.  

A change of name can also be brought by the parent with "lawful custody" under the Change of Name Act. If more than one parent has lawful custody, the consent of that person is required. If the other person with lawful custody does not consent, an application can be made to dispense with that consent.

Lawful custody means de facto custody and does not require a court order. The parent with de facto custody is the one with physical care and control of the child, controlling their place of residence, and making decisions on educational, medical, and religious matters (see K.A.B. v. Ontario, 2013 ONCJ 684). 

It is important to understand that a name change is an incident of custody (see Felix v. Fratpietro, (2001) 13 RFL (5th) 545). The Change of Name Act leaves the access parent without a right to prevent the custodial parent from changing the name of the child in the absence of an agreement or court order that prevents them from doing so. The access parent must be given notice of the change, but there is little the access parent can do to prevent the change in the absence of a prior court order or agreement.  

If a parent is successful in changing the name of their child after obtaining an order of parentage under s. 17(1) of the Children's Law Reform Act, as described above, their consent is required by the parent with lawful custody under the Change of Name Act for a further name change. This is the case even if the parent is an access parent without lawful custody. 

The same situation does not appear to be the case where the court orders a change of name based upon the exercise of their Parens Patriae power. It would be advisable to have a judge include in the order a term that prevents further name changes. This would avoid having the custodial parent retaining the ability to change the name back pursuant to the Change of Name Act.  

As a final note, it is important to bring the application in the proper jurisdiction. Applications made under s. 17(1) of the Children's Law Reform Act or by asking the court to apply it's Parens Patriae powers must be brought at the Ontario Superior Court of Justice or Family Court. Applications under the Change of Name can be brought at the Ontario Court of Justice, Ontario Superior Court of Justice, or Family Court.

*I should note that my comments here apply only to biological fathers and not to couples who choose to have a child through surrogacy. It is not my intention to diminish or undermine the equality of surrogate parents.