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Difference between revisions of "Parents"
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==Who is a "child?"== | ==Who is a "child?"== | ||
For the parts of the ''Family Law Act'' that talk about guardianship and parenting, a "child" is a person under the age of 19, the age of majority in British Columbia. For the parts of the act that talk about child support, the definition is a bit broader. Section | For the parts of the ''[[Family Law Act]]'' that talk about guardianship and parenting, a "child" is a person under the age of 19, the age of majority in British Columbia. For the parts of the act that talk about child support, the definition is a bit broader. Section 146 says this: | ||
<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of | <blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of the person's parents or guardians</tt></blockquote> | ||
The most common "other reason" why an adult child cannot "obtain the necessaries of life or withdraw from the charge of his or her parents" is because the child is going to college or university. | The most common "other reason" why an adult child cannot "obtain the necessaries of life or withdraw from the charge of his or her parents" is because the child is going to college or university. | ||
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==Who is a "parent?"== | ==Who is a "parent?"== | ||
People who are "parents" under the ''Family Law Act'', including stepparents, are required to help their children by paying ''child support''. People who are parents may also ask for orders about ''parental responsibilities'' and ''parenting time''. People who aren't parents are usually limited to asking for orders giving them ''contact'' with a child. | People who are "parents" under the ''[[Family Law Act]]'', including stepparents, are required to help their children by paying ''child support''. People who are parents may also ask for orders about ''parental responsibilities'' and ''parenting time''. People who aren't parents are usually limited to asking for orders giving them ''contact'' with a child. | ||
Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section | Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 23 says this: | ||
<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote> | <blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote> | ||
<blockquote><blockquote><tt>(a) a person is the child of | <blockquote><blockquote><tt>(a) a person is the child of the person's parents,</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote> | ||
<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of | <blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of the person's relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote> | ||
Section 26(1) says who a child's parents are presumed to be: | Section 26(1) says who a child's parents are presumed to be: | ||
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===Natural reproduction=== | ===Natural reproduction=== | ||
Under section 26(1) of the ''Family Law Act'', a child's parents are presumed to be the child's ''birth mother'' and ''biological father''. It's normally pretty easy to tell who the birth mother of a child is. It's not always so easy to tell if a man is the biological father of a child. | Under section 26(1) of the ''[[Family Law Act]]'', a child's parents are presumed to be the child's ''birth mother'' and ''biological father''. It's normally pretty easy to tell who the birth mother of a child is. It's not always so easy to tell if a man is the biological father of a child. | ||
Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother. | Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother. | ||
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<blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote> | <blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote> | ||
<blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote> | <blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote> | ||
<blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act</tt></blockquote> | <blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;</tt></blockquote> | ||
<blockquote><tt>(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.</tt></blockquote> | |||
Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a paternity test be conducted. | Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a paternity test be conducted. | ||
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===Assisted reproduction=== | ===Assisted reproduction=== | ||
When one or two people need the help of others to have a child, some additional rules apply and some additional people can be a "parent" of a child. Under the rules described in sections 27 to 30 of the ''Family Law Act'', | When one or two people need the help of others to have a child, some additional rules apply and some additional people can be a "parent" of a child. Under the rules described in sections 27 to 30 of the ''[[Family Law Act]]'', | ||
*one or two people who want to have the child, the ''intended parents'', can be the parents of the child, | |||
*the donor of sperm or an egg is not usually a parent of the child, | |||
*a surrogate mother is usually a parent of the child, and | |||
*the spouse of a surrogate mother is usually a parent of the child. | |||
However, a written agreement made before the child is conceived can say that a donor of sperm or eggs ''is'' a parent, that a surrogate mother ''is not'' a parent, and that the spouse of a surrogate mother ''is not'' a parent. In theory, at least, a child born of assisted reproduction can have as many as six people who are their parents. | However, a written agreement made before the child is conceived can say that a donor of sperm or eggs ''is'' a parent, that a surrogate mother ''is not'' a parent, and that the spouse of a surrogate mother ''is not'' a parent. In theory, at least, a child born of assisted reproduction can have as many as six people who are their parents. | ||
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People who adopt a child become the parents of that child when the court makes an adoption order under the provincial ''[http://canlii.ca/t/84g5 Adoption Act]''. At the same time, the birth mother and biological father of the child cease to have any parental rights or obligations with respect to the child. Unless the birth mother or biological father are jointly adopting the child with someone else, they become legal strangers to the child. They lose not only their obligation to pay child support, but also their right to ask the court for parental responsibilities or parenting time with the child. | People who adopt a child become the parents of that child when the court makes an adoption order under the provincial ''[http://canlii.ca/t/84g5 Adoption Act]''. At the same time, the birth mother and biological father of the child cease to have any parental rights or obligations with respect to the child. Unless the birth mother or biological father are jointly adopting the child with someone else, they become legal strangers to the child. They lose not only their obligation to pay child support, but also their right to ask the court for parental responsibilities or parenting time with the child. | ||
Unlike the parts of the ''Family Law Act'' that talk about assisted reproduction, section 5(1) of the ''Adoption Act'' limits the number of people who can adopt a child to a maximum of two. | Unlike the parts of the ''[[Family Law Act]]'' that talk about assisted reproduction, section 5(1) of the ''Adoption Act'' limits the number of people who can adopt a child to a maximum of two. | ||
==The rights and responsibilities of parents== | ==The rights and responsibilities of parents== | ||
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Under section 39, the people who are presumed to be the ''guardians'' of a child are: | Under section 39, the people who are presumed to be the ''guardians'' of a child are: | ||
*the child's parents, as long as they lived together, | |||
*a person who is a parent of a child under an assisted reproduction agreement, and | |||
*a parent who "regularly cares" for the child. | |||
In other words, if a couple has had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless they ''regularly care'' for the child. (The curious thing about the way section 39 is written, is that ''neither'' parent is presumed to be a guardian if the parents didn't live together! This is not what the BC government meant in drafting that part of the ''Family Law Act'', of course, and so far I'm not aware of any court decisions that have addressed the problem.) | In other words, if a couple has had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless they ''regularly care'' for the child. (The curious thing about the way section 39 is written, is that ''neither'' parent is presumed to be a guardian if the parents didn't live together! This is not what the BC government meant in drafting that part of the ''Family Law Act'', of course, and so far I'm not aware of any court decisions that have addressed the problem.) | ||
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A parent who isn't a guardian can become a guardian if the child's other guardians agree that the parent should be a guardian. If the parents can't agree on this, then the parent who isn't a guardian has three choices. They can: | A parent who isn't a guardian can become a guardian if the child's other guardians agree that the parent should be a guardian. If the parents can't agree on this, then the parent who isn't a guardian has three choices. They can: | ||
#settle for having contact with the child and not being able to participate in parenting the child | #settle for having contact with the child and not being able to participate in parenting the child, | ||
#try to prove that they ''regularly care'' for the child, in <span class="noglossary">order</span> to be recognized by the court as a guardian of the child who is entitled to participate in parenting the child | #try to prove that they ''regularly care'' for the child, in <span class="noglossary">order</span> to be recognized by the court as a guardian of the child who is entitled to participate in parenting the child, or | ||
#apply to be appointed as the guardian of a child under section 51 of the ''Family Law Act''. | #apply to be appointed as the guardian of a child under section 51 of the ''Family Law Act''. | ||
Applications for appointment as a guardian can be a bit difficult, as the applicant — the person who is making the application — must provide a special kind of affidavit that talks about all of the children who are and have been in their care, any civil or criminal court proceedings involving them that might impact on the safety of a child, and any involvement they might have had with the Ministry for Children and Family Development. The applicant must also provide recent Ministry and police records checks. | Applications for appointment as a guardian can be a bit difficult, as the applicant — the person who is making the application — must provide a special kind of affidavit that talks about all of the children who are and have been in their care, any civil or criminal court proceedings involving them that might impact on the safety of a child, and any involvement they might have had with the Ministry for Children and Family Development. The applicant must also provide recent Ministry and police records checks. | ||
Applications for appointment as a guardian are discussed in more detail in the [[Guardianship,_Parenting_Arrangements_and_Contact|Guardianship, Parenting Arrangements and Contact]] section of the [[Children]] chapter, under the heading "[[Guardianship,_Parenting_Arrangements_and_Contact#Being_a_guardian_and_becoming_a_guardian|Being a guardian and becoming a guardian]]." | Applications for appointment as a guardian are discussed in more detail in the [[Guardianship,_Parenting_Arrangements_and_Contact|Guardianship, Parenting Arrangements and Contact]] section of the [[Children and Parenting after Separation]] chapter, under the heading "[[Guardianship,_Parenting_Arrangements_and_Contact#Being_a_guardian_and_becoming_a_guardian|Being a guardian and becoming a guardian]]." | ||
==Government benefits== | ==Government benefits== | ||
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===Legislation=== | ===Legislation=== | ||
* ''[ | * ''[https://canlii.ca/t/8q3k Family Law Act]'' | ||
* | * ''[http://canlii.ca/t/843w Income Tax Act]'' (provincial) | ||
* ''[http://canlii.ca/t/7w0s Universal Child Care Benefit Act]'' | * ''[http://canlii.ca/t/7w0s Universal Child Care Benefit Act]'' | ||
* | * ''[http://canlii.ca/t/7wmq Income Tax Act]'' (federal) | ||
* ''[https://canlii.ca/t/54wtd Adoption Act]'' | |||
===Links=== | ===Links=== | ||
* [https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html Canada child benefits calculator] | *[https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html Canada child benefits calculator] | ||
* [http://www.cra-arc.gc.ca/bnfts/ | *[http://www.cra-arc.gc.ca/bnfts/ Overview of child and family benefits] from the Canada Revenue Agency | ||
* [https://www2.gov.bc.ca/gov/content/family-social-supports/family-benefits | *[https://www2.gov.bc.ca/gov/content/family-social-supports/family-benefits Family Benefits] from the Government of British Columbia | ||
* [http://www.clicklaw.bc.ca/resource/ | *[http://clicklaw.bc.ca/resource/2376 Introduction to Family Law] from Dial-a-Law by the People's Law School | ||
* [ | *[https://www.clicklaw.bc.ca/resource/4078 Single Parent Employment Initiative] from the BC Ministry of Social Development & Poverty Reduction | ||
*[https://www.clicklaw.bc.ca/resource/4132 My Support Calculator] | |||
*[https://www.clicklaw.bc.ca/resource/2315 Extended Family Program] from the BC Ministry of Children and Family Development | |||
*[https://www.clicklaw.bc.ca/resource/2951 Extended Family Program] from Legal Aid BC | |||
*[https://www.clicklaw.bc.ca/resource/1244 Children Born Outside Marriage] from Dial-a-Law by the People's Law School | |||
*[https://www.clicklaw.bc.ca/resource/1618 Child and Spousal Support] from Legal Aid BC | |||
*[https://www.clicklaw.bc.ca/resource/1482 Appointing a Guardian] from the British Columbia Law Institute | |||
*[https://www.clicklaw.bc.ca/resource/4655 Parenting and Guardianship] from Legal Aid BC | |||
*[https://www.clicklaw.bc.ca/resource/4498 Family Cases] from the Provincial Court of British Columbia | |||
*[https://www.clicklaw.bc.ca/resource/4788 Review of Parentage under Part 3 of the Family Law Act Project] from the British Columbia Law Institute (BCLI) | |||
{{REVIEWED | reviewer = [[JP Boyd]], April 8, | ===Resources=== | ||
* [http://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart"] from Legal Aid BC | |||
*[https://www.clicklaw.bc.ca/resource/4231 "Options for Parents and Families: Collaborative Planning and Decision-Making in Child Welfare"] from the BC Ministry of Children and Family Development | |||
*[https://www.clicklaw.bc.ca/resource/4402 "Successfully Parenting Apart"] from The Canadian Bar Association | |||
*[https://www.clicklaw.bc.ca/resource/4795 "Parents Legal Centre Brochure"] from Legal Aid BC | |||
{{REVIEWED | reviewer = [[JP Boyd]], April 8, 2023}} | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
