May 23, 2012

Child's Legal Surname

Something else to fight about

"The one thing I want to leave my children is an honourable name". - Theodore Roosevelt

In the past 50 years, a child’s surname has become the subject of controversy and litigation in Ontario. Where, traditionally, it was understood that children took their father’s surname, now it is not that simple. In fact, in Ontario, it appears that a mother has the ultimate ability choose the child’s surname, unless challenged in court. So, sadly, parents who are no longer together have one more thing to fight about.

A child’s name is registered in Ontario is under the Vital Statistics Act, by completing and filing a Statement of Live Birth. Section 9(1) of the Act requires the mother and the father, or either of them, to certify the child’s birth within 30 days of the child being born. This section does not apply if the father is incapable, unacknowledged or unknown by the mother. Moreover, if the mother certifies the birth and that the father is unknown or unacknowledged, she may give the child her surname. (Section 10)

The above provision was challenged in the Ontario Court of Appeal decision in Kreklewetz v Scopel (2002) 214 D.L.R. (4th) 385 (C.A.) In Kreklewetz, mother had determined the child’s surname, and the father sought to have the name changed. The Court of Appeal denied the father’s appeal, ruling that, if a mother certifies the child’s birth and that the father is either unknown or unacknowledged by her, she has the right to choose the child’s surname. The Court of Appeal found that the drafters of the legislation had intended such a result, and they would not interfere. This result is in contrast to the Supreme Court of Canada’s decision in Trociuk v British Columbia (2003) 226 D.L.R. (4th) 1 (S.C.C.). In Trociuk, the Supreme Court of Canada struck down the British Columbia Vital Statistics Act for being unconstitutional and discriminating against fathers. As Deshamps J. wrote for the court:

Including one’s particulars on a birth registration is an important means of participating in the life of a child. A birth registration is not only an instrument of prompt recording. It evidences the biological ties between parent and child, and including one’s particulars on the registration is a means of affirming these ties. Such ties do not exhaustively define the parent-child relationship. However, they are a significant feature of that relationship for many in our society, and affirming them is a significant means by which some parents participate in a child’s life. The significance of this affirmation is not only subjectively perceived. The legislature of British Columbia has attached important consequences to the presence of a father’s particulars on his child’s birth registration. It has decided that where a father’s particulars are included on the birth registration, his consent is always required for his child’s adoption. However, where his particulars are not included, a father must fulfill at least one of an alternative set of conditions. As Prowse J.A. notes, ss. 13(1)(c) and 13(2)(a) of the Adoption Act, R.S.B.C. 1996, c. 5, provide that a father who is named on the birth registration must be given notice of the proposed adoption of his child. He may, or may not, qualify for notice apart from registration (para. 141).

Contribution to the process of determining a child’s surname is another significant mode of participation in the life of a child. For many in our society, the act of naming a child holds great significance. As Prowse J.A. notes, naming is often the occasion for celebration and the surname itself symbolizes, for many, familial bonds across generations (paras. 138-39).

Unfortunately, although leave to appeal to the Supreme Court of Canada was sought in Kreklewetz (and could have been heard at the same time as Trociuk), leave was denied. Hence, until the Ontario statute is changed, Ontario Courts must find a different way to get around the Vital Statistics Act provisions, and the Court of Appeal decision in Kreklewetz. They are doing so with a certain sleight of hand. That is, by relying on Trociuk and claiming court have inherent jurisdiction to hyphenate a child’s surname, they avoid the problems of Section 9 and 10 altogether. Respectfully, such judicial manipulation is not the answer. Legislative reform is. It is hoped that the Ontario legislation will be changed to keep up with the times.

Photography by Chuck Simmins

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