SA,
I came across this case which referred to other jurisprudence. The hyphenated name change was allowed. It is good to read both angles to get an idea of the other sides potential argument to show WHY or WHY NOT it is in the best interest of the child for the proposed name change. Best to cover all the bases.
Vanderlinde v. Bohn, 2003 SKQB 503 (CanLII), (2003), [2004] 5 W.W.R. 398; (2003), 242 Sask. R. 264
http://www.canlii.org/sk/cas/skqb/2003/2003skqb503.html
and this case denied the name change
Lipphardt v. Chan, 2006 ABQB 511 (CanLII)
http://www.canlii.org/ab/cas/abqb/2006/2006abqb511.html
Paragraph 3
[3]
The onus of establishing the best interests of the child is on Ms. Lipphardt. Ms. Lipphardt has not advanced either evidence, or even persuasive arguments, that Rebecca will suffer embarrassment as a result of her surname. Even if it were the case that Rebecca’s surname causes, or will cause, confusion and difficulty - an argument which the court treats with skepticism given the current variety of family formats within Canadian society and Canada’s multicultural values - the only interests which the court must weigh are the best interests of the child, not the convenience of the parents. Changing Rebecca’s surname would remove a formal link with her father while providing no compensating advantage; Ms. Lipphardt has not met the burden of establishing that this loss would be to Rebecca’s advantage
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but deals with the naming of a child at birth - Vital Statistics Act
history of legislation changes is discussed and reference to Trociuk v. British Columbia (Attorney General) 2001 BCCA 368 (CanLII), (2001), 200 D.L.R. (4th) 685
R.K. v. M.S., 2002 CanLII 44989 (ON C.A.)
http://www.canlii.org/on/cas/onca/2002/2002onca10313.html
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this application denied
Smalley v. Hoppe, 1999 ABQB 931 (CanLII), (1999), [2000] 257 A.R. 204
http://www.canlii.org/ab/cas/abqb/1999/1999abqb931.html
2. What factors should the court consider before dispensing with the necessity of the consent of a birth parent to a change of surname of a child of the marriage?
[8] In Wintemute, Sinclair C.J.Q.B. outlined the factors that a judge should consider on an application of this type:
- welfare of the children is the paramount consideration;
- the short and long term effects of any change in the children’s surname;
- any embarrassment that the children may feel in having a different surname from that of the custodial parent;
- any confusion of identity that may arise if the name is changed or is not changed;
- the effect of a change of name on the relationship with the parent whose name the child bore during the marriage;
- the effect of frequent or random changes of name.
[9] I accept those as the factors that I must consider on this application.
3. What is the evidence concerning the children’s best interests in this case?
[10] In this case, Ms. Smalley has presented essentially no evidence on any of these factors.
[11] However, the very fact that the Legislature requires the consent of Mr. Hoppe to a proposed change of surname for the children of the marriage means that the court should not dispense with that requirement lightly. As the court put it in Herniman: “I do not consider the change of the surname of a child to be an administrative act.
Any proposed change must be in the best interests of the child.”
[12] Here, Mr. Hoppe has paid child support and is not in arrears of this obligation. This is a very important obligation of a parent; the fact that Mr. Hoppe may have been in error in deciding not to insist on access does not mean that he has abandoned his children or is uninterested in their welfare, or has withdrawn from them.
[13] In the absence of evidence of the situation of these children in particular, it is difficult to imagine that:
- the relationship between Mr. Hoppe and his children would be positively affected by the change of name;
- there would be any embarrassment on the part of the children in not having the same name as their mother, especially in this society where married women are frequently keeping their maiden names, and where there are so many blended families;
- there would be confusion by the children as to who their birth father is despite the fact that the youngest of the children was only one year old when the parents separated and 3 years old when his parents divorced. Undoubtedly, Ms. Smalley has explained to the children through all of these years that their father is paying $1,200.00 per month towards their financial support and that he has not withdrawn from their lives.
[14] Moreover, as Mr. Hoppe notes, the oldest child of the marriage is only a few months short of her 12th birthday and on that date she would have a say in whether her surname should be changed. Therefore, even if Ms. Smalley had presented evidence on the factors listed by Sinclair J., it might still have been appropriate to adjourn the application until after the oldest child’s 12th birthday: Herniman.
[15] The application is therefore denied.
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Court of Appeal Manitoba
Rattai v. Wyrzykowski, 2004 MBCA 155 (CanLII), (2004), 244 D.L.R. (4th) 765; (2004), 8 R.F.L. (6th) 333; (2004), 190 Man. R. (2d) 87
http://www.canlii.org/mb/cas/mbca/2004/2004mbca155.html
appeal denied.
To summarize, the party requesting the change of name has the heavy onus to prove on the balance of probabilites that it is in the child's best interest to change the name of the child.
lv
