WHO DECIDES A CHILD’S LAST NAME WHEN HE OR SHE IS BORN IN ONTARIO?
The Honourable Madam Justice H. McGee explored this issue was discussed in the decision of S.D.G. v. A.S., 2015 ONSC 752. You can read the text here.
In this case, when the Child was born the Father already had a substantial criminal record and was incarcerated. The Mother did not see a future with the Father and decided not to register the Father’s name on the Child’s birth registration.
At the time of this motion, the Child has just started Grade 1 and has used her Mother’s last name only. The Father has supervised access every second weekend. The Child recognizes only the Father as her father.
According to the Vital Statistics Act, RSO 1990, c V.4 if the Mother does not know or does not acknowledge the Father, then the child adopts the Mother’s last name. The statutes permit the Father to get a court Order both declaring that he is the child’s Father and that his paternity be added to a child’s birth registration. Neither he nor the court can compel the child to adopt a different last name against the Mother’s wishes, however.
McGee J, however, that the court has parens patriae over this issue. (Anyone who has parens patriae has the legal right to act as a parent in place of an actual parent.) In this case, the court can order the Registrar General to change a last name if it is in the child’s best interests.
The harm that can come to a child in not assuming the Father’s last name is either the child will be confused about his or her identity or that it would prevent the child from bonding with the Father. McGee J. held that neither danger was evident in this case so she dismissed the Father’s motion.