Aida Rafie

When a parent or guardian of a child in Alberta seeks to change the last name of a minor, their application to the Court is made pursuant to Section 23 of Alberta’s Vital Statistics Act, SA 2007, c V-4.1 which sets out the requirements for same.

In the recent case of Hoefling v. Kushni, 2017 ABQB 476, the mother made an originating application to change the last name of her 12 year old son from the biological father’s last name to her last name, and to dispense with the father’s required consent. The mother’s position was that she had custody of the child, her son had asked for the name change, her son disliked using his legal name and would often not use same, and that the father refused to discuss the matter when the parties made an attempt to. While the mother indicated that the father was not involved in the child’s life and did not pay child support, she had also obviously acknowledged the father when the child was a newborn, as his name was included on the birth registration document and therefore included in the child’s name (as pursuant to sections 6 and 7 of the Vital Statistics legislation).

The Honourable Madam Justice J.B. Veit denied the mother’s application in this case. The Justice concluded that a change in the child’s last name was not in the child’s best interests, which the caselaw establishes to be the prevailing consideration in determining whether a child’s last name should be changed. Specifically, the Justice based her decision on an assessment of the positive vs. negative consequences that a change of last name for the child in question could produce. The Justice found that, at most, the positive consequence produced would be the satisfaction on the child’s part that his legal name was the name he was already choosing to use. But this was not a situation where the child resented his father or was committed to not seeing his father, and the Justice found no further evidence in this case of any other benefit to the child or to the mother as a result of the name change. Of significance here, the Justice further found no evidence that a denial of a change of last name would negatively affect the child as the child could change his name when he reached 18 and the mother identified no need to use his “legal” name to the court.

The Justice however found a potential negative consequence to granting the name change, which was a potential weakening of the relationship between the child and one of his parents. Justice Veit noted in finality at para 22: “This child may not have much of a relationship at this time with his father, but, by maintaining the tenuous link of the last name, the child knows, and will know, at the least, that his father wanted to keep some contact with him.”