DAVID RUSSELL 
Barrister & Solicitor

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.  

The majority of parenting plans or custody orders are entered into by way of agreement or on consent. During a divorce or separation, emotions are high. Pressure from the other side's lawyer, financial stress, and exhaustion may all contribute to a parent accepting a less-than-ideal parenting plan perhaps hoping that it can be changed at a later date. However, it is only where the original order or agreement is no longer working for the child that the court will step in to make changes. The courts will be reluctant to interfere with a child's routine for a plan that has not been tested. If you are going through a separation, it is important to put your best foot forward at the outset to ensure that the child will maintain a close relationship with you.

Keeping in mind that changing a custody or access order/agreement is not easy, they are not set in stone. Where the court finds that an agreement is no longer working for the child, it has an obligation to vary the agreement to meet the child's needs. This article briefly discusses the procedure for changing an access or custody arrangement and the legal grounds upon which these cases are decided.  

Forms 15, 15A, and 35.1 under the Family Law Rules Forms are required to bring a motion to change a custody or access order. To change an arrangement under a written agreement, you must bring an application using Form 8.

In order to make a change to a custody or access arrangement, you must satisfy three conditions. First, there must be a change in the condition, means, needs or circumstances of the child and/or the the ability of parents to meet the needs of the child. Secondly, this change must materially affect the child. Third, this change must not have been foreseen or reasonably contemplated by the original agreement or order. (Gordon v. Goetz, 1996 2 S.C.R. 27 at para. 13)

Without overcoming these threshold issues a court will have no jurisdiction to vary an order or agreement. However, there are a wide variety of circumstances that would amount to a material change in circumstances. If there is a finding that a material change has occurred, the court will go on to determine what order should replace the current one, based upon the best interests of the child as set out in s. 24 of the Children's Law Reform Act.

The following are examples of material changes in circumstances that can lead to a variation of a custody/access order:

• Passage of Time: this is not a material change of circumstances in and of itself. However if the order or agreement was made to address the needs of a very young child, a material change will occur as the child ages and their needs change. Older children are emotionally stronger and can tolerate longer periods away from each parent. School commitments and extra-curricular activities create scheduling issues that also may need to be addressed.
• One parent is not abiding by the agreement: Where one party repeatedly breaches an order or agreement by impeding access to the child by the other parent, this may constitute a material change. See Zinck v. Fraser where the Mother acted contrary to the spirit of the joint custody arrangement by thwarting access by the Father. Day-to-day care and control of the child was transferred to the Father who better understood the important role played by both parents in the child's upbringing. While repeated violations of a court order or agreement may constitute a material change, more minor or trivial breaches may not. The key factor, as always, is how the violations impact upon the welfare of the child. If a child is being deprived access to a parent this would be contrary to their welfare.
• Animosity between parents: increased hostility between parents may constitute a material change in circumstances where it makes a joint custody order no longer viable. Joint custody orders require cooperation which may not be possible after a breakdown in communication between parents. See the case of Hildinger v. Carroll where the Father put his own need for control ahead of the needs of the child. The parent's lack of shared values and/or respect for one another caused the court to grant sole custody to the mother to whom the child had a closer bond. In high-conflict cases, the court will be concerned with limiting the child's traumatic exposure to parental conflict by reducing the need for the parents to interact with one-another. This may be achieved by granting one parent sole custody or reducing the number of exchanges. The courts generally favour the more reasonable parent in granting sole custody or deciding primary residence.  
• Poor Judgment/Conduct: there are many scenarios where a parent's conduct may pose a risk of emotional or physical harm to the child and constitute a material change in circumstances. Examples include out-of-control drinking, drug abuse, or criminal conduct. The extent to which the negative behaviour is being addressed by counseling or treatment is an important factor to consider. Other circumstances outside the control of a parent may include an abusive new partner who is violent towards the child or exposes the child to domestic violence. Exposing the child to these dangers may constitute a material change in circumstances resulting in a change in custody or access. 
• Improper Parenting/Neglect/Abuse: a failure to attend to educational, health care, or dental needs of the child may constitute a material change in circumstances. Obvious deficiencies in these areas may reveal a poor level of attention, care and supervision. Areas of concern in younger children may include diaper rash, a failure to immunize, lack of potty-training, dirty clothing, and signs of injuries. In older children, signs may include a failure to treat behavioural issues like ADHD, poor academic performance, or poor personal hygiene. Teachers can be a source independent evidence and should be consulted if and when concerns arise. A child with special needs creates additional challenges for a custodial parent. A material change in circumstances will arise if the child's special needs are not being addressed in an effective manner by a parent.
• Wishes of the child: where the court is satisfied that a child has expressed a clear and unequivocal preference for a change in residence, this will be considered a material change in circumstance subject to the age and maturity of the child. It is also important that the opinion was arrived at independently and without outside influence. There are several options available to obtain the views of the child through an independent 3rd party, including a views of the child report, OCL Report, appointment of counsel for the child, or interview by a judge. Involving a child directly in the litigation by way of sworn testimony is generally discouraged, as it tends to expose the child to parental conflict. Finally, the views of the child are not necessarily determinative of what is in their best interest.
• Self-improvement by the non-custodial (access) parents: Sometimes a parent may have suffered from a mental illness, addiction issue, or an irregular work schedule which made it difficult to exercise significant custody or access at the time of the original order or agreement. If their personal circumstances improve, the court may treat that as a material change in circumstance by awarding increased access or custody to that parent. However, if a child is thriving in the custody of another parent or caregiver, the court may be reluctant to change the status quo in favour of an untried option in spite of a parent's self-improvement efforts. Efforts should be made to put one's best foot forward before an agreement or order is made.

To conclude, there are a wide number of circumstances that may have been unforeseen at the time an order/agreement was made which will allow a court to vary the agreement. If a material change occurs the court may replace the agreement with what it deems to be in the child's best interest, following the factors outlined in s. 24 of the Children's Law Reform Act. However, if the agreement or order is working well for the child, it may be reluctant to change the current arrangement for a plan that is untested. 

Either parent can seek an order which would allow or prevent a parent from moving the child outside the jurisdiction. The court will examine a number of factors in arriving a decision.  They include: 

1. The relationship between the child and each parent, 
2. The desirability of maximizing both parents contact with the child, 
3. The preferences of the child, 
4. The reasons for the move only if a move is required for the parent to take care of the child's needs.
5. Disruptions to the child. (Gordon v. Goertz [1996] 2 S.C.R. 27 at para. 49)

As is the case in all decisions involving children, it is their best interest that must be of paramount concern. Where both parents offer a stable and nuturing home environment, a decision by one parent to move far away from the other parent presents the court with an uncomfortable dillema. The decision can be unpredictable, but here are some important factors to consider:

A. The Custodial Parent

The custodial parent controls the major decisions in a child's life. Presumably, the custodial parent is also the parent with whom the children spend the most time. It is in the child's best interest to have a happy, well functioning custodial parent. Considerable respect will be given to the wishes of the custodial parent to relocate, especially if a move would improve the custodial parent's emotial, psychological and/or economic well-being (see: Bjornson v. Creighton, [2002] OJ No. 4364)

In joint custody situations, if one parent is the "primary parent" and has taken over responsibility for the majority decisions, their choice of where to reside will be afforded greater respect (see Roth v. Carruthers [2000] OJ No. 5013 at para. 28-31).

If you want to prevent a move, it is important to retain and exercise custodial powers to ensure an equal footing when it comes to such major decisions. Joint custody, where both parents are involved in the major decisions and both participate equally in the lives of their children, will ensure that the views of each parent will be given equal weight.  (Dix v. Thomas, [2006] O.J. No. 3457).

In spite of the above, there is no presumption in favour of granting a custodial parent's wishes to remove a child from the jurisdiction, away from the other parent. The custodial parent has a responsibility to act in the best interest of the child. Sometimes this will allow a move, but other times it requires the custodial parent to stay in the jurisdiction (see Gordon v. Goertz ​2 S.C.R. 27 at para. 37). 

B. Maximum Contact

Having regular and frequent visits with both parents is generally considered to be in the child's best interest. This is known as the maximum contact principle found in s. 16(10) of the Divorce Act, and s. 24(2)(d) of the Children's Law Reform Act. In custody disputes, preference may be given to the parent willing to foster a good relationship between the child and the other parent (see Corriveau v. Blair, 2005 ONCJ 470).

A decision on custody will be made before a judge makes a decision on where the child will live and with whom.  In deciding a custody issue, a court can rely on a parent's plans to relocate outside the jurisdiction (see Hibbert v. Escano [2010] OJ No. 944 at para. 78).

The maximum contact principle is important in mobility cases. A move often significantly reduces access to a parent whom the child is used to seeing regularly. If the move is not necessary for a parent to meet the needs of a child, the maximum contact principle will likely prevail over the wishes of the parent to move (see Berry v. Berry, [2011] O.J. No. 5006).

The court is more likely to dismiss an application to relocate where the evidence indicates that the application is motivated, at least in part, by a desire to frustrate the other parent's access (see Wolf v. Wales, [2001] OJ No. 120 aff [2001] O.J. No. 4908). 

Nevertheless, the principle of maximum contact is subordinate to over-all consideration of the best interests of the child (see Nunweiler v. Nunweiler, [2000] BCCA 300 at para. 28). 

C. Stability and the Status Quo 

In addition to giving weight to the wishes of the custodial parent, and the desirability of maximizing contact with both parents, the need for continuity and stability in the life of the child is a very important consideration. 

A move that would take the child away from their friends, school, neighborhood and activities may result in a negative disruption and be contrary to the child's best interest (see Elliott v. Turcotte, [2009] ONCA 240 at para. 18). 

Where the move would cause a disruption to a stable environment, this factor is of "prime importance." (see Young v. Young, [2003] OJ No. 67 at para. 28). Factors include a disruption to family, schools, and the community the child has come to know.  

Conclusion

There are a number of competing interests and factors to weigh when determining whether a move is in the child's best interest. It is often a difficult decision for a judge to make, especially where both parents are committed to live in separate jurisdictions. It is an area where it is hard to expect parents to agree.  

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