September 26, 2013 By: Alice Weatherston
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What happens when parents can't decide on their child's name? These days there are lots of married parents who do not change their last name after marriage and there are a growing number of people in common law relationships with children. Similarly, when people enter into surrogacy agreements, the birth mother may not be the biological mother or an intended parent. In these cases it’s hard to know what the child’s last name should be.

According to the Vital Statistics Act, the mother and father, or either of them, must certify a child’s birth. The certification may acknowledge biological and intended parents (including same sex couples and/or intended parents from surrogacy agreements). If both parents who certify the child’s birth cannot agree on the last name, the child will be given a hyphenated last name, combining each parent’s name alphabetically. There’s a wrinkle though. If the mother states that the father is unknown or unacknowledged, or does not acknowledge an intended second parent, the child gets the birth mother’s last name.

However, regardless of the name a child is given at birth, it is possible to change a child’s name. An unacknowledged parent could apply to the court for a declaration of parentage, declaring that he or she is the parent of the child under the Children’s Law Reform Act (CLRA). At the same time, the parent could apply to have the child’s last name changed to a hyphenated last name, as long as doing so is in the child’s best interests.

To obtain a declaration of parentage, the court presumes that a man is a father under certain circumstances. Some of these circumstances include; if the man was married to the mother or cohabiting with the mother in a relationship of some permanence at the time of birth, or 300 days before the child’s birth; or if the man marries the mother of the child after the child’s birth and acknowledges that he is the natural father. If there are conflicting presumptions resulting in more than one presumed father, none of the presumptions are valid. At that point, it may be time to pursue a blood and DNA test under the CLRA.

While hyphenated last names may resolve the issue of picking the child’s last name in the short term, eventually we’ll have to start agreeing with each other, otherwise it will soon be common for children to have hyphenated, hyphenated last names!

In some circumstances, it’s possible for a child’s surname to be different from his or her parents’ surnames if it reflects the child’s cultural, ethnic or religious heritage. Otherwise, the child must have a combination of the parents’ last names at birth. But, following registration of the birth, parents can change their child’s name under the Change of Name Act as long as they qualify under the Act’s provisions. If the parents’ are not limited by any restrictions under the Act, they can choose any last name they desire.

There is no legislation dealing with parents who cannot agree on the child’s forename. In such circumstances you may have Baby X until you can work it out!

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law