“The change of a child’s name is dealt with in s. 5 of the [Change of Name, R.S.O. 1990, c. C.7] Act. The Act allows a person with “lawful custody” to apply to the Registrar General for a name change. Subsection 5(2) states who must consent to the application. Subsection 5(4) provides that if the required consent cannot be obtained or is refused, the person seeking the change can apply to the court for an order dispensing with that consent.
The relevant parts of s. 5 are set out below.
5 (1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,
(a) the child’s forename or surname or both; or
(b) the child’s single name, if the child has a single name.
(1.1) Subsection (1) applies to 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.
(2) 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.
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(4) If the required consent cannot be obtained or is refused, the person seeking to change the child’s name may apply to the court for an order dispensing with that consent.
(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice.
(5) The court shall determine an application under subsection (4) in accordance with the best interests of the child.
(6) The applicant under subsection (1) shall give notice of the application to every person who is lawfully entitled to access to the child.
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The Act does not provide the father with a statutory pathway for changing the child’s surname. Under the Vallee order, the mother has sole custody of the child. While she is required to consult with the father on all major decisions, her decision prevails. Of note, the father is not seeking to change the Vallee order.
Under the Act, only a person with “lawful custody” can apply to the Registrar General for a change of name. The father does not have custody nor any decision-making power under the Vallee order. As an access parent, he cannot rely on this Act to seek a name change.
As stated in Felix v. Fratpietro (2001), 2001 CanLII 37828 (ON SC), 13 R.F.L. (5th) 54 (Ont. S.C.) at para. 22: “[t]he cases are clear that a name change is an incident of custody. That is made abundantly clear by virtue of the Change of Name Act itself which requires consent from a custodial parent, but only notification to an access parent.”
Furthermore, the father is not a person whose consent is required under s. 5(2), assuming the mother had applied for a name change.
The only reference in s. 5 to an access parent is found in s. 5(6). This subsection provides that the access parent has a right to be given notice of any application for a change of name.”