Factors to consider when one parent objects to the other applying to change the legal surname of their children
Name changes for children may not often end up in court, but for those occasions on which they do, the Ontario Court of Justice has issued a concise summary of factors to consider when one parent objects to the other parent applying to change the legal surname of one or more of their children.
In Schaafsma v. Eaton, 2019 ONCJ 423, the Ontario Court of Justice ruled that a mother could proceed with applications to the Registrar General to change her daughters’ surnames to Schaafsma Eaton from Schaafsma, rejecting the children’s father’s application to halt this. (The parents of the two young girls were never legally married and are now separated.)
“It was a very interesting case,” says Gary McQuaid, a sole practitioner in Woodstock, Ont., who represented the mother in the case. “You don’t see many name-change issues go to trial.”
In a nutshell, says McQuaid, “Dad’s position was . . . they’ve always had my last name, it’s a very well recognized name in the township of Norwich,” in Oxford County in southwestern Ontario. “The father argued … ‘they’re known by that name at school, and there’s no reason to change it.’” The father’s mother and aunt also testified and provided the same evidence, noting that theirs was “a very important, prominent name in the township of Norwich,” McQuaid says.
Subsection 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.
“In the absence of such an order or agreement, the custodial parent is free to change a child’s name over the objection of the non-custodial parent,” Justice S. E. J. Paull of the Ontario Court of Justice noted in his ruling. “The father is seeking a court order that, if granted, would have the effect of preventing the mother from being able to bring a name change application under the Change of Name Act.”
The mother testified that the parents were not married and had separated in January 2015, that she had always used her own name and that their girls should be afforded the opportunity to use her name as well. The older daughter, born in 2010, had started to use her mother’s in addition to her father’s surname at school in the 2016-2017 year, and both girls started doing so in September 2018, although their mother had enrolled them under the name Schaafsma.
“The school didn’t object, because my client has sole custodial disposition by way of a court order,” says McQuaid.
In his decision allowing the name change, Paull outlined the “factors for the court to consider in determining whether a prohibition of a name change is in a child’s best interests. These factors include:
a) Whether the proposed name change will exclude the name of the non-custodial parent.
b) The length of time a custodial parent has had sole custody of the child.
c) Whether there is a continuing close relationship between the child and the non-custodial parent.
d) Whether there would be any serious effect on the non-custodial parent.
e) Whether either parent has displayed any malice or improper motivation.
f) The age of the child and the weight to be given to the child’s wishes, in light of that age.
g) The length of time the child has had its name.
h) The surnames of any siblings.”
The judge further noted: “The onus of proof rests with the person who is opposed to the change, not with the person applying for the change. The person opposing the change of name must prove on a balance of probabilities that the proposed change would not be in the best interests of the children.”
He found that the mother did not have “an improper motive” in seeking to include her own name in her children’s names and that the father’s position “appears motivated more by hurt pride than a balanced and child focused assessment of the children’s best interests.”
“Justice Paull took a practical, modern-day approach” in dismissing the father’s application, says McQuaid. “Not ‘I can’t change the name because it’s only ever been Dad’s surname.’ He said, ‘they’re part of two people; why not use the names of both parents?’
“I’m in front of Justice Paull all the time, and that was probably one of his harsher judgments,” he adds, noting the judge’s references to the father’s criminal convictions for assault and being in significant arrears in child support.