• by Ainsley Doell
Originally published in the OFLM 2024-02 edition
Overview
Courts have long recognized the importance of a child’s name and its deeper connection to their identity. As such, they do not take applications to change a child’s name lightly. This article will look at Justice Gibson’s decision in Tansley v. Dikianidis (2024 ONSC 212), and discuss what the courts are looking for in determining whether a change of name is in a child’s best interests.
Introduction
Names are widely considered to be “fundamental to a child’s identity” (Tansley v. Dikianidis, 2024 ONSC 212 at para. 2). For many people, they can signify a sense of familial belonging. This is one reason why parents may seek to change their child’s surnames to match their own following separation, but is also a reason courts may be hesitant to allow the change.
The decision in Tansley v. Dikianidis featured a dispute over whether a temporary order for decision-making granted a mother the authority to apply to change her children’s names without the consent of their father.
Justice Gibson finds that the answer to this question is ‘no’, as determining whether the father’s consent should be dispensed with would require a full inquiry into the best interests of the children.
This article will review the legislation that applies to changing a child’s name in Ontario, before considering Tansley and the factors that will likely be relevant if and when the matter returns before the court during the May 2024 trial sittings as scheduled.
Legislative background
When a child is born in Ontario, their name is initially registered under the authority of the Vital Statistics Act (R.S.O. 1990, c. V.4) (“VSA”). Disagreements between biological parents regarding their child’s surname are far from uncommon, and these disputes have often made their way to court. The VSA provides that where parents cannot agree on a child’s surname, the child will be given a surname that consists of “both parents’ surnames hyphenated or combined in alphabetical order”, provided that the parents have different surnames (VSA, s. 10(3)).
The solution to this type of disagreement is more complicated when it arises later on in a child’s life. For example, a single parent whose child shares a last name with an absentee parent may wish to change that child’s surname to match their own. In situations such as these, the Change of Name Act (R.S.O. 1990, c. C. 7) (“CNA") applies.
The CNA provides that a person with lawful custody of a child can apply to have that child’s name or names changed. This is of course subject to restrictions, such as where there is a court order or separation agreement in place which prohibits them from doing so (CNA, s. 5(1)). This also requires the consent of every person who has lawful custody, and anyone else whose consent is required by a court order or separation agreement. If the child is at least twelve years of age, their consent is also required (CNA, s. 5(2)).
The dispute in Tansley required Justice Gibson to consider the terms of the CNA in light of both the particular facts at hand as well as the still somewhat recent legislative changes that replaced the term “custody” from the vernacular and replaced it with “parenting time” and “decision making” in both the federal Divorce Act (R.S.C. 1985, c. 3 (2nd Supp.)) and the provincial Children’s Law Reform Act (R.S.O 1990, c. C.12) (“CLRA”).
It is worth noting that there is additional legislation in place that governs name changes in the context of surrogacy agreements and adoptive parents seeking to change the name of an adoptee child (see for example the CLRA and the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1).
Tansley v. Dikianidis
- Facts
The subjects of the dispute in Tansley were 4-year-old Atticus and 2-year-old Mabel, whose parents cohabited for a period of approximately four and a half years prior to their separation in 2021. Many parenting issues remained outstanding at the time of the motions, but the decision at hand deals with the motions brought by each of the parties with respect to the application the mother had made to change the children’s names.
The proceedings commenced in September 2021. A temporary order made on consent in 2023 gave the mother temporary decision-making responsibility for both children. The father continued to pursue joint decision-making responsibility and shared parenting time.
A short while after the temporary order was made, the mother filed two applications under the CNA, without the father’s knowledge. She sought to change the children’s surnames from the father’s surname of “Dikianidis” to “Tansley”, to match her own.
When the father received copies of the application, he promptly took action through counsel and filed an objection with the Registrar General. He then proceeded to court to obtain a temporary stay of the name change applications.
It was at this point that the mother sought to withdraw her application and submit a new one, this time seeking to hyphenate the children’s surnames as “Tansley-Dikianidis”, as well as add an additional family name to Atticus’ forename.
The court set out the issues to be decided on the motions as follows:
- Should the Applicant be permitted to proceed to change the children’s names under the Change of Name Act based upon a temporary order granting her decision-making responsibility?
- Should the stay of the application to change the children’s names be continued until after the children’s best interests as a whole are determined at trial? (para. 16).
- Interpreting “lawful custody”
It was clear on the facts that the father had not consented to the mother’s applications to change the children’s names. Instead, the question was whether the mother had the authority necessary to apply for the changes anyway. Per the CNA, this would require that she is the only person with “lawful custody” of the children.
Determining whether or not this is the case was complicated by the recent legislative amendments which replaced the language of “custody” in the CLRA with “parenting time” and “decision making”. How “lawful custody” ought to be interpreted was central to the arguments of each of the parties.
Justice Gibson notes that “lawful custody” is not defined within the CNA, but that other legislation has been amended to harmonize with the new language of the CLRA.
The mother argued that “lawful custody” ought to be interpreted as equivalent to “decision-making responsibility” (para. 6). As such, pursuant to the temporary order, she should be considered to have the authority to apply to change the children’s names.
The father’s position was that regardless of whether “custody” should appropriately be considered as equivalent to “decision-making”, it would be unreasonable to interpret a temporary order for decision-making as equivalent to “lawful custody”. Logically, he argued, this term must be interpreted as meaning custody or decision-making on a final basis. Otherwise, absurdity may flow from a parent changing the name of a child under the authority of a temporary without prejudice order for decision-making without the requirement of notifying the other parent (at para. 25).
From a practical standpoint, Justice Gibson notes that the old and new legislative language to not map on to each other in such a way that they can be considered perfectly synonymous for all purposes: Decision-making can be parcelled out into a framework promoting the best interests of a child in a way that was not possible under the former scheme of “custody” (at para. 27).
Justice Gibson was also not able to identify any reported decisions where a temporary order for either custody or decision-making provided the basis for dispensing with a parent’s consent to a child’s name change (at para. 28). On the other hand, Roy-Bevington v. Rigden (2017 ONCJ 730) provides good authority for the proposition that a temporary order is insufficient for doing so: Justice Finlayson found that a temporary order means that the question of custody is still a live issue, and that issues relating to a child’s name can be properly dealt with at trial (or on a motion, in appropriate circumstances and subject to the appropriate test).
He noted case law that acknowledges the profound importance of a child’s name to their identity, and that a court must find that such a name change is in the child’s best interests. To allow the change at this stage in the proceedings would have “profound implications” for the father and would “risk deciding the issue and preventing [him] from having a full opportunity to present evidence at trial concerning the best interests of the children” (at para. 33).
The actions of the mother in taking steps to change the children’s names on the basis of a temporary order which had been in effect for three months were found to be premature. Justice Gibson further noted that no evidence has been presented which shows “harm to the children on the basis of their current surname” (at para. 34).
It is noted that the mother’s reasoning seems focused on her own “personal feelings” and “embarrassment”, rather than focusing on the children (at para. 34). This kind of rationale has been denounced by the court in Hennessy v. Brockett (2021 ONSC 8280).
The mother’s motion was dismissed, and the stay was continued.
How would this issue be decided on a final basis?
Tansley clearly demonstrates that a temporary order for decision-making will not be sufficient authority for dispensing with the other parent’s consent to changing a child’s name. This is because a full inquiry into the child’s best interests ought to be conducted prior to making decisions that can impact something as central to a child’s identity as their name.
However, this may cause readers to wonder, how will this issue be decided when the matter reaches trial?
When there is a dispute between parents regarding changing a child’s name, the onus is on the parent seeking the name change to demonstrate that it is in the child’s best interests (see Herniman v. Woltz, 1996 CanLII 8087 (ON SC) at para. 8).
This has been codified at section 5(5) of the CNA, which provides that an Application to dispense with the consent of a parent shall be determined “in accordance with the best interests of the child”.
The CNA does not define “best interests”. In Tansley, Justice Gibson points to the test under section 24(b) of the CLRA (at para. 36). However, there is also a line of case law enumerating various “best interests” factors relating specifically to name changes, that predate the CLRA. Many of these cases are considered by Gibson J, in arriving at his decision that the mother’s application should not be allowed to continue absent the father’s consent.
The factors appear in many iterations. one commonly cited version comes from Justice Sinclair in 1985, who pointed to Christine Davies’ articulation in Family Law in Canada:
- the welfare of the child is the paramount consideration;
- the short and long term effects of any change in the child’s surname;
- any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
- any confusion of identity which may arise for the child if his or her name is changed or not changed;
- the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;
- the effect of frequent or random changes of name.
(Wintemute v. O’Sullivan, 1985 CanLII 1363 (AB KB) at para. 7.)
These factors were adopted by Ontario courts and have been recently affirmed. For more recent applications of the factors from Wintemute, see for example Cuthbert v. Nolis (2018 ONSC 4643) and Closner v. Closner (2021 ONSC 6114).
In 2017, Justice Sherr considered the case law and provided a familiar list of non-exhaustive factors, which also included a consideration of the child’s wishes (to be weighed in accordance with their age), whether there is a “continuing close relationship” between the child and the “non-custodial” parent, and “whether either parent has displayed any malice or improper motivation” (Hermanson v. Kiarie, 2017 ONCJ 598 at para. 22).
Conclusion
The parties in Tansley are scheduled for trial in the May 2024 sittings. Justice Gibson engaged in a preliminary discussion of the children’s best interests which touched on many of the factors outlined above, including noting that the children are young enough that their views will not hold much weight.
If the mother is to be successful, then she will likely need to present a compelling argument that focuses on the best interests of the child rather than her own feelings about not sharing a surname with her children.
When seeking a name change for a child, consider the stage you are at in the proceedings and whether your argument in favour of the change is focused on your client’s wishes, or on the child’s best interests. There may be overlap between the two, but the legislation and the case law indicates that courts will only be interested in the latter.
It can often take a long time for matters to settle or get to trial, and temporary orders exist as a way to respond to the needs of parties and their children in the interim. However, given the importance of a name, courts are going to want to engage in a full analysis of the best interests of a child before allowing a name change.