Can my spouse change the name of our child if I don’t have custody?

Spouses who have recently separated often look to change their name. The Change of Name Act outlines the steps and protocol if one were seeking to alter the name listed on his or her birth certificate.

Section 4(1) of the Change of Name Act depicts the prerequisites that one must satisfy before applying for a change of name: he/she must be at least 16 years old and a resident for at least one year prior to the application.

Section 4 of the Change of Name Act deals with applicants over the age of 16, while section 5 of the Act deals with a parent’s wish to change the name of their child. Consent by each person with lawful custody of the child will be required prior to the change of name, and depending on whether the child has reached the age of 12, consent from the child may also be required.

Relevant to this matter is whether the non-custodial parent can take measures to prohibit his (former) spouse from changing their child’s name. In the case of Zho v. Chen, the court ruled that a separation agreement preventing the custodial parent from changing the child’s name is not guaranteed to stand uncontested in a court of law; that is, a court has jurisdiction to look at the whole matter and rule contrary to what the separation agreement prescribes.

Similarly, there have been cases that prove the above-mentioned notion that a separation agreement preventing the custodial parent from changing the name of the child is enough to prohibit the name change from occurring (Felix v. Fratpietro).

It is of note that due to recent legislative amendments, the terms "custody" and "access" are not commonly used today. However, the Change of Name Act has not yet been amended to reflect these changes.

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