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What is the legal process for giving or changing my child’s name ?
There are at least 2 times when this question arises – at birth and after separation.
For naming a child at birth, Ontario’s Vital Statistics Act states at section 9 that “[t]he mother and father, or either of them…shall certify the birth in Ontario…” This legislation requires, at section 10, that “[a] child…shall be given at least one forename…and a surname.”
It is the next part of the Vital Statistics Act that addresses those cases where the child’s parents do not agree on the child’s name. Section 10(3)(2)(ii) states:
“If both parents certify the child’s birth but do not agree on the child’s surname, the child shall be given…a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, if they have different surnames.”
Thus, where the parents cannot agree on a child’s last name, Ontario’s Vital Statistics Act stipulates that the child will be given a last name made up of both parents’ last names, in alphabetical order, either hyphenated or combined.
As for changing a child’s name after birth, such as after separation, section 14(1)(a) provides that a “person with lawful custody of a child under the age of 12 years whose birth was registered in Ontario may elect…to change the child’s [name]…unless a court order or separation agreement prohibits the change.”
This is followed by section 14(3) that provides that a “person who elects under subsection (1) shall give notice of the election to every person who is lawfully entitled to access to the child.”
That means that if only one parent has lawful custody of a child under the age of 12 years, he or she may apply to change a child’s name, unless a court order or separation agreement prohibits such a change. That is, provided that the parents do not have joint or shared custody of the child, the parent with sole custody does not require the other parent’s consent to change the child’s name – just notice to him or her. Such notice could lead to a court application to prevent such a change.
Ontario’s Vital Statistics Act operates alongside Ontario’s Change of Name Act.
Section 5 of the Change of Name Act states that:
“A person with lawful custody of,
(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or
(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made, may apply to the Registrar General in accordance with section 6 to change the child’s forename or surname or both, unless a court order or separation agreement prohibits the change.”
Section 5(2) of the Change of Name Act states:
“The application under subsection (1) requires the written consent of,
(a) any other person with lawful custody of the child;
(b) any person whose consent is necessary in accordance with a court order or separation agreement; and
(c) the child, if the child is twelve years of age or older.”
Section 6(7) of the Change of Name Act states that:
“If anyone is entitled to notice of an application, the applicant shall,
(a) at least 30 days before filing the application, send notice and a copy of the application by registered or certified mail to the last known address of the person entitled to notice; or
(b) obtain an acknowledgment of notice, signed by the person entitled to notice, and provide it with the application to the Registrar General.”
In summary, there are laws pertaining to the giving or changing of a child’s name. A parent seeking to change a child’s name without the other parent’s agreement, or a parent seeking to prevent a name change, is best advised to consult a lawyer.
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