Difference between pages "Adoption (3:XIII)" and "Name Changes (3:XIV)"

Revision as of 03:19, 29 December 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 29, 2020.

A. Legislation: Name Act, RSBC 1996, c 328

The instructions for changing a surname are outlined in the Name Act. It can be skipped if the change occurs during the marriage ceremony or divorce. The procedures for changing a first name are much less formal and are not set out in legal rules (see Section XIV.C: Changing a First Name). The Department of Vital Statistics provides a name change package complete with forms and instructions. They can be reached in Vancouver at (604) 660-2937.

Note the Court decision in Trociuk v British Columbia (Attorney General), [2003] 1 SCR 835 which declared ss 3(1)(b) and 3(6)(b) of the British Columbia Vital Statistics Act unconstitutional. These sections prevented a father from having the registration of the child’s surname altered, violating their rights under s 15(1) of the Canadian Charter of Rights and Freedoms.

B. Changing a Surname

1. General

Any person may apply to change their own name.

a) At the Time of Marriage

At the time of marriage, a person may elect to:

retain the surname they had immediately before marriage;
use the surname they had at birth; or
use the surname of their spouse by marriage.

b) A Parent with Custody of an Unmarried Child

A parent with custody may change the surname of their child. They must submit written consent of:

the child if the child has attained the age of l2 years;
the other parent, if living; and
the applicant’s spouse if the application is to change the child’s surname to that of the applicant’s spouse.

A parent with custody of an unmarried child may allow that child to informally use any surname they want, and that child may be registered in grade one under that name. No consent from the other parent is necessary in this case. A parent may apply to change a minor child’s name legally. It is also possible to apply for a change of name if the other parent:

a) is deceased or mentally disordered;
b) cannot after reasonable, diligent and adequate search be located; or
c) is, in the option of the registrar general, unreasonably withholding their consent.

c) A Widowed Person

A widowed person may apply to change their surname. The applicant must submit a death certificate, or if the death occurred in British Columbia they may state date and place of death and name of spouse.

d) A Divorced Person

A divorced person may, upon divorce, go by the name listed on their birth certificate.

2. Eligibility

To be eligible to change their name under the Name Act, a person must be:

be an adult; or if a minor, must be a parent having custody of their children; and:
have been domiciled in British Columbia for at least 3 months or have resided in British Columbia for at least 3 months immediately before the date of the application (s 4(1)).

3. Procedure

NOTE: A change of name application can be included in the Notice of Family Claim and attached Schedule 5: Other Orders filed in divorce proceedings to avoid the procedure described below.

a) When the Applicant Has Already Assumed the Name

Sometimes the name to be legally adopted is one that has already been informally assumed. The assumed name should be indicated when preparing the application form. For example: “...change my name from John Doe, known as Henry Smith, to Henry Smith”.

b) Publishing Notices of Intention

A person who wishes to legally change their name is no longer required to publish a notice of intention.

c) Making the Application

When making application for a change in their surname or given name, or both the surname and given name, the applicant must insert their name in full in the notice of application for a change of name.

Application for a legal change of name must be accompanied by:

i) the birth certificate, landed immigrant identification card or Canadian citizenship certificate of the applicant, and others included in the application;
ii) a marriage certificate where the change affects the name of a married man or woman (not required for persons married in British Columbia);
iii) any required consents, as above;
iv) proof of custody from applicants who have been divorced, respecting any children included in the application who were born prior to the divorce;
v) the statutory fee of $137, and $27 for each additional individual; and
vi) proof of death from widowed applicants respecting any children included in the application.

NOTE: Information can be obtained from the Division of Vital Statistics (Vancouver telephone: (604) 660-2937; website: http://www.vs.gov.bc.ca/) regarding other related procedures such as a bride’s election of surname at marriage, and changes of name resulting from adoption, legitimisation of birth, dissolution of marriage, or due to improper registration of the birth originally.

C. Changing a First Name

1. Eligibility

Anyone may change their first name. However, minors should be advised that they must obtain the written consent of their parents to do so.

2. Procedure

The client does not need to go through the application procedures necessary for changing a surname. The client can start using another first name at any time.

All identification – including credit cards, driver’s license, social insurance card, school records (where applicable), health care cards, bank accounts, and birth certificates – should be changed to the first name being used. This can be done by contacting the relevant organizations and filling out a Change of Name Form.

Usually, the client’s former first name will become a middle name instead.

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-== A. Legislation ==
+== A. Legislation: Name Act, RSBC 1996, c 328 ==
-=== 1. Adoption Act, RSBC l996, c 5 ===
+The instructions for changing a surname are outlined in the [http://canlii.ca/t/8481 ''Name Act'']. It can be skipped if the change occurs during the marriage ceremony or divorce. The procedures for changing a first name are much less formal and are not set out in legal rules (see [[{{PAGENAME}}#C.Changing a First Name | Section XIV.C: Changing a First Name]]). The [http://www2.gov.bc.ca/gov/content/life-events Department of Vital Statistics] provides a name change package complete with forms and instructions. They can be reached in Vancouver at (604) 660-2937.
-The [http://canlii.ca/t/84g5 ''Adoption Act''] governs adoptions in BC. The Act provides for the licensing of adoption agencies. These agencies, in addition to the Director of Adoption, have exclusive authority for facilitating adoptions, matching birth families with adoptive parents, adoption planning, pre-placement assessment, placement services, and post-placement counselling and assessments for non relative adoptions in BC. The ''Adoption Act'' enables any adult person to apply to adopt a child, or to adopt another adult person. Under ss 5 and 29, one or two adults may apply to adopt a child. This allows unmarried couples, including same-sex couples, to apply to adopt.
+Note the Court decision in [http://canlii.ca/t/1g6ph ''Trociuk v British Columbia (Attorney General)'', [2003<nowiki>]</nowiki> 1 SCR 835] which declared ss 3(1)(b) and 3(6)(b) of the British Columbia [http://canlii.ca/t/84fk ''Vital Statistics Act''] unconstitutional. These sections prevented a father from having the registration of the child’s surname altered, violating their rights under s 15(1) of the [http://canlii.ca/t/8q7l ''Canadian Charter of Rights and Freedoms''].
-The ''Adoption Act'' says that a child may be placed for adoption by the Director of Child, Family and Community Service; an adoption agency; a parent or guardian of a child by direct placement; or a parent or guardian of a child, if the child is placed with a relative of the child.  A direct placement means the placing of a child by a parent or other guardian with one or 2 adults who are not a relative of the child. According to section 37(c), biological parents may also apply to adopt with a third party.
+== B. Changing a Surname ==
-Section 37 of the ''Adoption Act'' states the effect of the adoption order. For all purposes, an adopted child becomes the child of the adopting parent(s) and the biological parents cease to have any parental rights or obligations with respect to the child.
+=== 1. General ===
-Two legal exceptions under the Act are:
+Any person may apply to change their own name.
-*a) an adopted First Nations child does not lose status, rights, privileges, disabilities, and limitations acquired under the ''Indian Act'' and other Acts (s 37(7)); and
+==== a) At the Time of Marriage ====
-*b) adoption adds a prohibited degree of consanguinity for the purpose of marriage or laws relating to incest (s 37(4)).
-The adopted person takes the given names specified in the adoption order, and the surname of the adopting parents, unless the court orders otherwise at the request of the applicant (s 36).
+At the time of marriage, a person may elect to:
+*retain the surname they had immediately before marriage;
+*use the surname they had at birth; or
+*use the surname of their spouse by marriage.
-Furthermore, openness agreements are recognized by statute (s 59) and may be entered into by the adoptive parents, the birth parents, and others with a relationship to the child, after consents to adoption have been signed.
+==== b) A Parent with Custody of an Unmarried Child ====
-An adoption effected under the law of a jurisdiction other than BC is valid in BC as though it had been made under BC’s adoption legislation (s 47). Part 4 of the ''Adoption Act'' deals with interprovincial and intercountry adoptions.  Before a person brings a child into the province for adoption they must obtain the approval of a director or an adoption agency (s 48(1)). Part 4 Division 2 deals with intercountry adoption of children from countries that are signatories to the [https://www.hcch.net/en/instruments/conventions/specialised-sections/intercountry-adoption Hague Convention on Intercountry Adoption]. To complete an adoption from a foreign country, whether that country is a “Hague Country” or not, a person needs the approval of the British Columbia [http://www.cic.gc.ca/english/immigrate/adoption/authorities.asp Central Authority].
+A parent with custody may change the surname of their child. They must submit written consent of:
+*the child if the child has attained the age of l2 years;
+*the other parent, if living; and
+*the applicant’s spouse if the application is to change the child’s surname to that of the applicant’s spouse.
-Under the ''Adoption Act'', ss 63(1) and 64(1), birth records may be disclosed to both birth parents and adult adoptees. The [http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/adoptions/search-reunions-registries Reunion Registry] facilitates reunions and disclosure of records. The Act provides for filing of non-disclosure vetoes and no-contact vetoes (ss 65 and 66).
+A parent with custody of an unmarried child may allow that child to informally use any surname they want, and that child may be registered in grade one under that name. No consent from the other parent is necessary in this case. A parent may apply to change a minor child’s name legally. It is also possible to apply for a change of name if the other parent:
+*a) is deceased or mentally disordered;
+*b) cannot after reasonable, diligent and adequate search be located; or
+*c) is, in the option of the registrar general, unreasonably withholding their consent.
-== B. Procedure ==
+==== c) A Widowed Person ====
-=== 1. Consent ===
+A widowed person may apply to change their surname. The applicant must submit a death certificate, or if the death occurred in British Columbia they may state date and place of death and name of spouse.
-Section 13(1) of the ''Adoption Act'' states that no adoption order may be made without the written consent of:
+==== d) A Divorced Person ====
-*the child, if 12 years of age or over; children aged between 7 and 11 must be interviewed to ascertain whether they understand the meaning of adoption, and their views on the proposed name changes and a report must be filed with the court;
-*the child’s parents. The birthing parent cannot sign consents until the child is at least 10 days old (s 14). The consent of the other biological parent, who is not presumed to be the child’s biological parent under s. 26 of the ''Family Law Act'', is not required unless the biological parent acknowledges they are named as a parent by the child’s birthing parent;
-*the child’s guardians;
-*where a child is a permanent ward of the Director of Child, Family, and Community Service, the Director, as guardian, must consent (s 13(5)).
-The court may dispense with the need for consent from some of these parties. Parental consent may be dispensed with if it is in the best interest of the child or if the person has abandoned or deserted the child, cannot be found, is incapable of giving consent, has persistently neglected or refused to contribute to support for which they are liable, or is a person whose consent ought, in all the circumstances of the case, to be dispensed with (s 17). The consent of a child over 12 years of age can only be dispensed with if the child is not capable of giving informed consent (s 17(2)).
+A divorced person may, upon divorce, go by the name listed on their birth certificate.
-A person’s consent must be in the form of an affidavit sworn in front of a notary or a lawyer. Each affidavit must state that the effect of the consent and of adoption was fully explained to the person consenting, and that they signed the consent freely and voluntarily.
+=== 2. Eligibility ===
-How and when a person can revoke their consent is set out below in section 6.
+To be eligible to change their name under the ''Name Act'', a person must be:
+*be an adult; or if a minor, must be a parent having custody of their children; and:
+*have been domiciled in British Columbia for at least 3 months or have resided in British Columbia for at least 3 months immediately before the date of the application (s 4(1)).
-=== 2. Notifying the Director of Adoption ===
+=== 3. Procedure ===
-Within 14 days after receiving a child into their home for the purposes of adoption, the prospective adoptive parents must notify, in writing the Director of Adoptions or an adoption agency (s 12).
+:'''NOTE:'''  A change of name application can be included in the Notice of Family Claim and attached Schedule 5: Other Orders filed in divorce proceedings to avoid the procedure described below.
-A person wishing to apply to adopt must notify the Director of Adoption in writing of their intention (s 31) at least 30 days before filing the application unless:
+==== a) When the Applicant Has Already Assumed the Name ====
-*the child has been placed in a licensed adoption agency;
-*the child is related to the applicant by blood; or
-*the applicant is the child’s stepparent.
-The Director of Adoption then makes an inquiry and files a report with the court before the hearing date. At least 30 days before the date fixed for the hearing of the application or an application to dispense with consent, the applicant must give a copy of the application with a notice of the date of hearing to the Director or licensed adoption agency.
+Sometimes the name to be legally adopted is one that has already been informally assumed. The assumed name should be indicated when preparing the application form. For example: “...change my name from John Doe, known as Henry Smith, to Henry Smith”.
-The court may dispense with the times needed for the notices where the Director’s report shows good cause that the waiting period is not necessary to protect the interests of all parties (s 6(9)).
+==== b) Publishing Notices of Intention ====
-In cases of “direct placement", potential adoptive parents must notify either the Director of Adoption or an adoption agency as soon as possible before the child is received in their home, and then in writing within 14 days after the child is received. Prior notice is required to allow the adoption agency or the Director of Adoption to receive or provide information to and from the birth and adoptive parents. Such information may include providing alternatives to the birth parents, doing a pre-placement assessment of the adoptive parents, counselling adoptive children if necessary, and ensuring that children over 12 have given informed consent.
+A person who wishes to legally change their name is no longer required to publish a notice of intention.
-Under s 33, a post-placement assessment must be made by either the Director of Adoption or an adoption agency, providing a recommendation on whether the adoption should be made or not, or whether insufficient information is available to make the determination.
+==== c) Making the Application ====
-=== 3. Adoption by the Child’s Blood Relatives or Stepparents ===
+When making application for a change in their surname or given name, or both the surname and given name, the applicant must insert their name in full in the notice of application for a change of name.
-The Director of Adoption does not need to be notified or make a report where one adult may apply to the court to become a parent of a child jointly with another parent, nor where a blood relative of achild applies to adopt the child.
+Application for a legal change of name must be accompanied by:
+*i) the birth certificate, landed immigrant identification card or Canadian citizenship certificate of the applicant, and others included in the application;
+*ii) a marriage certificate where the change affects the name of a married man or woman (not required for persons married in British Columbia);
+*iii) any required consents, as above;
+*iv) proof of custody from applicants who have been divorced, respecting any children included in the application who were born prior to the divorce;
+*v) the statutory fee of $137, and $27 for each additional individual; and
+*vi) proof of death from widowed applicants respecting any children included in the application.
-In the case of stepparent and blood relative adoptions, the application may not be made until the child has lived with, and been in the custody of, the applicant for at least six months prior to the application, except by order of the court. The court may still order a report from the Director. Wherea report from the Director is not necessary, the material filed in support of the application should inform the court:
+:'''NOTE:''' Information can be obtained from the Division of Vital Statistics (Vancouver telephone: (604) 660-2937; website: http://www.vs.gov.bc.ca/) regarding other related procedures such as a bride’s election of surname at marriage, and changes of name resulting from adoption, legitimisation of birth, dissolution of marriage, or due to improper registration of the birth originally.
-*in whose care the child has been since birth;
-*whether the parents have consented or proper reasons for the omission of such consent;
-*how long the applicants have been married;
-*the ages and occupations of the applicants;
-*whether either of the applicants have any other children living with them;
-*that the applicants are able to bring up, maintain and educate the child; and
-*any unusual circumstances relevant to the application.
-=== 4. Where all Parties Have Consented to Adoption ===
+== C. Changing a First Name ==
-If all of the necessary consents have been obtained, no notice need to be given and the application is made under Rule 17-1(24) of the ''BC Supreme Court Family Rules''. The real application is thus the Requisition made to the registry and all other documents can be “the material on which the application is founded”.
+=== 1. Eligibility ===
-=== 5. Where Consent is Not Obtained ===
+Anyone may change their first name. However, minors should be advised that they must obtain the written consent of their parents to do so.
-Subject to circumstances where s 42 of the ''Adoption Act'' apply, an application under s 11 of the ''Adoption Act'' dispensing with notice of a proposed adoption to a birth parent and an application under s 17 of the ''Adoption Act'' dispensing with consent to an adoption, may be included in an application for an order for adoption under ''Supreme Court Family Rule'' 17-1(26). See Family Practice Direction 1: Adoption Applications at http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx.
+=== 2. Procedure ===
-=== 6. Revocation of Consent ===
+The client does not need to go through the application procedures necessary for changing a surname. The client can start using another first name at any time.
-Fraud, undue influence, and duress may invalidate consent. In the absence of such defect with the agreement, the court may only revoke consent if it is in the best interests of the child.
+All identification – including credit cards, driver’s license, social insurance card, school records (where applicable), health care cards, bank accounts, and birth certificates – should be changed to the first name being used. This can be done by contacting the relevant organizations and filling out a Change of Name Form.
-Consent may be revoked in writing before the child is placed (s 18). The birth parent may revoke their consent within 30 days of the child’s birth regardless of the child’s placement. The child may revoke consent at any time before the order is made (s 20). After the child has been placed, subject to the above, consent may be revoked only by court order and only if it would be in the best interests of the child. The application for revocation of consent must be made before the granting of the adoption order (s 22).
+Usually, the client’s former first name will become a middle name instead.
-A person who consents to an adoption may revoke his consent prior to the child being placed if the revocation is in writing and received by the director or agency before placement.
-=== 7. Checklist for Filing an Adoption ===
-The necessary documents for an adoption application can be found on the [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx BC Supreme Court website].
-The applicant should include:
-*the petitioners’ affidavit;
-*Petition to the Court (Form F73);
-*affidavit of parent’s consent to adoption;
-*paternity affidavit of birth parent if no other biological parent named;
-*birth parent expense affidavit, sworn by the adoptive parents;
-*requisition to have adoption heard in chambers, if necessary;
-*Notice of Hearing of petition (Form F75), if necessary;
-*Requisition re: Desk Order for Adoption, if the adoption is uncontested and the necessary consents have been obtained; and
-*Desk Order for Adoption (no hearing necessary); and/or order after hearing in chambers.
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