In the recent case of Schaafsma v. Eaton the Ontario Court of Justice developed a summary of the factors to be taken into consideration when parents disagree over the changing of their child’s name. In the case, the mother wished to change the surname of her daughter. The father applied to halt this however the court ruled in favour of the mother and allowed the application to proceed.
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The law contained within the Change of Name Act s. 5(1) permits parents the right to apply for a change of their child’s name unless prohibited by court order or a clause in the couple’s separation agreement. However, it is quite rare for a matter such as this to go all the way to trial.
Arising from this ruling was a simplified summary of factors to be considered for couple’s undertaking a similar matter:
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.” [22]
Much of the court’s decision rested on the facts that the mother and father were never married, the mother continued to use her surname throughout their relationship, and their oldest daughter had started using her mother’s surname as well. The court also took into account past criminal convictions and a lack of child support payments from the father into consideration as well. The court concluded that the onus of proof – by way of the best interests of the child -rests on the person seeking a prohibition on the name change.
For the full text of the decision see:
