There was a recent post about conflict over the last name of the child in a popular Ontario Family Law Facebook Group.
The usual situation where this is a point of conflict, is Mom named the child with just her last name, and not the hyphenated last name of hers and the biological father (where his name is different). Dad wants the last name changed, Mom refuses with various reasons citing the hospital allowed her too, and she was permitted to do so under the Vital Statistics Act.
I hope this post sheds some light.
I know the hospital forms may allow you to do whatever it is you want to do - but they are not making sure it's legal. Just because you can speed, and do speed, doesn't mean there are laws against it and that it won't cost you if you run afoul of those laws.
Early on, the Vital Statistics Act governed the last name of the child. There was some debate over the meaning of the phase of the father being "unacknowledged", be it meaning was the father known or simply just not acknowledged by Mom.
In Rajic v. Milanovich, 2002 CanLII 49553 (ON SC) it seems pretty clear that it was at the discretion of the mother. Which would support all the positions expressed in this group that a child could be named with just Mom's last name. Especially when you read (there was a comparison to the BC laws, but this was an Ontario case) :
[26] It seems that the legislation in British Columbia and Ontario make it clear that they intended to give this power to the mother. There is thus no basis to exercise parens patriae. These cases hold that the Vital Statistics Act of Ontario (and British Columbia) set out a complete code for the registration of live births and it does not provide for an appeal of the decision of the Registrar.
In that case, Dad failed to have the name hyphenated failed, but the decision also made a point of saying no Human Rights arguments were put forward by counsel. That is telling. When a judge points out the lack of a certain argument, they are pointing out where counsel went wrong.
The court also expressed concern about the child's perceived biological link to both parents, but at that time was powerless to do anything about it.
BUT. This has changed as of several years ago.
Fast forward to the fairly recent Children's Law Reform Act, s.17 not gives the court jurisdiction to change the last name :
17 (1) Any person declared under section 10, 11 or 13 to be a parent of a child may apply to the court for an order that the child’s surname be changed to any surname that the child could have been given under subsection 10 (3) or (3.1) of the Vital Statistics Act if the child had been born at the time of the declaration. 2016, c. 23, s. 1 (1, 2).
There is also a big Human Rights component to this, as hinted at with the case law above.
You can find case law now where the last name was changed over the objection of Mom, to reflect the fathers name as well.
For example in Duwyn v Ross, 2023 ONSC 3168 (CanLII), the court found they had jurisdiction under CLRA s.17 to change the name. They also noted the Human Rights argument finding that it was unconstitutional that to defer to the Mother's desire at birth with no regard for the father was discrimination under s.1 of the Canadian Charter of Rights and Freedoms.
Bottom line... hyphenate the name or a motion could do it for you and you might be facing costs.
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