Changing Your Child’s Name when the other Parent Won’t Consent

Changing a child’s name after a separation or major family change is often a deeply personal and emotional decision.

It’s a step some parents or guardians consider to help their child feel more connected to them or to establish a new family identity. Sometimes, parents/guardians can work together and will agree to this type of amendment or change; however, this tends to be a very sensitive and complicated matter, and often, there is a party that does not agree.

The Legal Framework for a Child’s Name Change

All name amendments or changes fall under the Vital Statistics Act, SA 2007, C V-4.1. In a situation where one party wishes to amend or change a child’s name (or amend the sex on a child’s birth record), the consent of the other parent and/or guardian(s) will be required. If the other parent/guardian does not provide consent, section 69 of the Vital Statistics Act allows the court to step in.

This section allows for an Application to be made to “dispense with consent” or, in other words, get rid of or override the requirement for their consent. Section 69 is as follows:

Dispensing with consent
69(1) If on an application under this Act the consent of a person is required and the applicant is unable to obtain the consent of that person, the Court of King’s Bench may dispense with the consent of that person.

(2) If the application referred to in subsection (1) is an application to amend or change the name of a child or an application to amend the sex on a child’s birth record, the Court of King’s Bench, in deciding whether to dispense with consent, shall have regard to the best interests of the child.

An application to dispense with consent to change a Child’s name must be brought to the Court of King’s Bench. It is also important to note that when bringing an application to dispense with consent for a child’s name change under section 69, you must serve all interested parties, including any parents and/or guardian(s) and Vital Statistics (section 70 of the Vital Statistics Act). As stated in the legislation and affirmed by the courts in Alberta and other provinces in numerous legal cases, the court will consider the best interests of the child when reviewing this type of application.

The Court’s Take on Dispensing with Consent to Change a Child’s Name

Notwithstanding that the Vital Statistics Act provides authority for this application to be made, the issue of whether a parent can or should change a child’s surname without the consent of the other parent continues to be a debated topic in family law in Canada.

In Alberta, there is limited case law on this topic; nonetheless, the case law that is available is notable and highly regarded in the Alberta courts, making them good guidelines when considering this application.

As previously stated, the court must consider only the best interests of the child in question. One influential Alberta case on this matter, Lipphardt v. Chan, 2006 ABQB 511, reaffirms this, adding that the onus is on the one wishing to change the name to prove this is in the child’s best interests. The Court, in this case, states that “the only interests which the court must weigh are the best interests of the child, not the convenience of the parents.”

When considering the best interests of the child, the court will refer to very specific factors that can be found under section 16(3) of the Divorce Act (R.S.C., 1985, c.3(2nd Supp.)). if you are married or engaging in a divorce process or under section 18 of the Family Law Act, SA 2003, c F-4.5 in other circumstances.

In a more recent Alberta decision, JEB v JS, 2020 ABQB 761, the Court of Queen’s Bench (as it then was) had to decide whether to dispense with a father’s consent to hyphenate the child’s surname to include both of the party’s family names. In this case, the father made several arguments against the name change, mainly that the name was decided at birth and, therefore, the child should continue to carry it. In referencing the case of Lipphardt v. Chan, the Court reaffirmed the importance of only considering the best interests of the child. The court rejected the father’s argument, ruling in favour of the mother’s application and dispensing with his consent.

It is notable that the Court’s analysis rejected the mother’s argument that amending the child’s name would make it easier to travel and engage with healthcare professionals.

The Court referenced an out-of-province case in which this “convenience” argument was found to be in the child’s best interests but noted that since this was an assumption and not based on the mother’s actual personal experience, it would not be considered in this situation.

Common Trends

It is most common for applications that involve removing a party’s family name completely from the child’s name to be rejected (Lipphardt v. Chan), and it is generally easier to apply to amend the child’s name to include another name, such as by hyphenating it (JEB v JS). While it is not impossible to make a different change to a child’s name, it is good to know what is commonly granted and what may be a more complex application or argument to make when considering your options.
Specifically, the courts have found that where an application is to hyphenate the child’s name, this change would not “exclude either parent or the half-brother from identifying with the child” and would “enhance his connection and identity with his mother’s family.” For example, if a child’s surname is ‘Smith’ and one parent wishes to add ‘Johnson’; the hyphenated surname would become ‘Smith-Johnson’; ensuring both family names are represented.

This case law, overall, demonstrates that, in Alberta, the courts take a balanced child-centred approach when considering applications to dispense with consent to change a child’s surname.

While a family’s traditions and cultural practices may be respected, they are not determinative. The child’s best interests, especially in terms of maintaining connections to both parents, tend to take precedence. Hyphenated surnames are becoming more common, and the court has observed that in diverse societies like Canada’s, there is no longer an expectation that family members will all share a single surname.

Conclusion

Changing a child’s name without the other parent’s consent can be a complex process, with the court’s primary consideration being the child’s best interests. If you’re navigating the emotional and legal complexities of a name change for your child, know that you don’t have to go through it alone.

Our firm is here to help you achieve the best outcome for your child while ensuring their best interests are protected – contact us today.