Volume 25, No. 1 - October 2012
Family Law Section
A Parent’s Right – The Name Game
By Elizabeth Mourao
"What's in a name? That which we call a rose by any other name would smell as sweet."
Romeo and Juliet (2-2)
Romeo Montague and Juliet Capulet meet and fall in love in Shakespeare's poetic tale of star-crossed lovers. In
the tale, Juliet tells Romeo that a name is an artificial and meaningless convention, and that she loves the person
who is called "Montague", not the Montague name and not the Montague family. Out of his passion for Juliet,
Romeo rejects his family name and vows, as Juliet asks, to "deny (his) father" and instead be "new baptized" as
Juliet's lover. This one short line encapsulates the central struggle and tragedy of the play.
Fast-forward a few centuries later and ask: “What’s in a name”? Is it an artificial and meaningless convention?
Most fathers will tell you that a name is anything but, that the act of naming a child holds great significance.
In the recent Ontario Superior Court decision of Garland v. Brouwer, the Court had to determine the appropriate
custodial arrangements for a two year-old child and the father’s request to have the child’s surname changed.
The child was the biological offspring of the parties. The parties met when they were both students. Shortly after
the mother became pregnant, she moved in with the father and his family. Immediately following the birth of the
child, the parties separated and troubles over custody and access developed. The mother sought sole custody of
the child, arguing that the parties had absolutely no ability to communicate. The father wished joint custody and
was successful in obtaining it.
In addition to the custodial issues, between the time of the parties’ separation and the commencement of litigation,
unbeknownst to the father, the mother had registered the child's birth in her name alone and had not
acknowledged the father in the Statement of Live Birth under the Vital Statistics Act. The father, in turn, sought to
amend the registration of the child’s birth and have the child’s surname changed.
Registration of a child’s birth in the province of Ontario is carried out by completion of a Statement of Live Birth
Form under Ontario’s Vital Statistics Act. (Section 9(1) of the Act states that the mother and father, or either of
them, are required to certify their child’s birth in Ontario. This is to be done within 30 days of the child being
born.
Subsection 9(1) of the Act does not apply to the child's father if he is incapable or is unacknowledged by or
unknown to the mother. Additionally, section 10(3) of the Act states that if the mother certifies the child's birth
and that the father is unknown to or unacknowledged by her, she may give the child her surname.
In Garland, the mother did not complete Section C (father’s information) of the Statement of Live Birth,
triggering her statutory right to give her surname to her child. The father sought to be acknowledged on his child’s
birth registration and to have his child’s last name changed such that it is hyphenated to include the Garland
name. He was successful in doing so.
The Court held:
“A child’s name as shown on the birth registration is recognition of the child’s biological ties to his or her
biological parents. A birth registration is not merely an instrument of recording a birth; it is evidence of the
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biological ties between a parent and a child, and a means of affirming those biological ties. Where the
name of the father is excluded from the birth registration, it would be perceived that the father’s biological
ties to the child are less important than the mother’s biological ties to the child.”
The mother had argued that the Act is a legislative code for birth registrations and the Court has no jurisdiction to
order the mother to acknowledge the identity of a father on a birth registration absent legislative authority to do
so. The mother relied on the Ontario Court of Appeal decision Kreklewetz v. Scopel.
In Kreklewetz, the Court held that the Act allows a mother to have the ultimate ability to determine the surname of
her child in circumstances where the father is unknown to or unacknowledged by her. Such that, a mother may
admit the identity of the father, but then refuse to acknowledge him for the purpose of naming the child.
In this case, the father and the mother had been involved in a sporadic relationship ending shortly after the birth of
their son in 1998. The mother was the primary caregiver to the child and the father exercised access and paid child
support. The parties had a dispute regarding the child's name and the father applied to the Court for an order to
change the child's name. After being denied this relief, the father appealed to the Ontario Court of Appeal. His
appeal was dismissed.
The Appellate Court ruled that the Vital Statistics Act expressly provides that if the mother certifies the child's
birth and that the father is unknown to or unacknowledged by her, she may give the child her surname. The
Appellate Court held that the Ontario legislature had made a policy decision to allow a mother to have the
ultimate ability to determine the surname of the child. The Appellate Court was not prepared to override that
policy. Leave to the Supreme Court was sought.
While the hope was that Kreklewetz would be heard by the Supreme Court contemporaneously with Trociuk v.
British Columbia, a British Columbia decision wherein a father challenged the constitutionality of the British
Columbia Vital Statistics Act, a statute that very much mirrored that of Ontario, leave was refused by the Supreme
Court on Kreklewetz. The Supreme Court went on to hear the British Columbia case.
Mr. Trociuk was the father of triplets. The parents had not married. Shortly after the triplets were born, the mother
filled out their birth registration forms on her own. On the forms, she listed the father of the children as
"unacknowledged by the mother."After the father and mother had separated, the father obtained a court order for
supervised access to the children.
Mr. Trociuk also wanted to have his identity included on the children's birth registration forms and wanted to
change their surnames. The father twice asked the director of Vital Statistics to amend the children's birth
registration forms to acknowledge him as their father. Both requests were refused. The Supreme Court of Canada
went on to declare the British Columbia Vital Statistics Act provisions unconstitutional. The statute has since been
amended to comply with the Court’s decision.
In Garland, the Court determined it was not bound by Kreklewetz because of the Supreme Court of Canada
decision in Trociuk and because the Court had parens patriae jurisdiction to order that the registration of a child's
name at birth be amended to include a hyphenated name. It was ordered that the child's name be legally changed
to Brouwer-Garland on all documentation.
It had been rumoured for quite some time that Ontario was going to change its Vital Statistics Act to accord with
the decision in Trociuk. This has not yet happened and is far overdue. The right to arbitrarily exclude a father in
the naming of their child when he has expressed an interest in raising and supporting that child is discriminatory.
It essentially renders them a second-class parent.
*Elizabeth C. Mourao is a lawyer at Ricketts Harris LLP. Her practice is restricted to family law. Elizabeth was
trial counsel for Mr. Garland on the on the Garland v. Brouwer matter.
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