Parents

Your relationship may have been brief, but if you have had a child with someone, you are both responsible for meeting the child's financial needs and you may both be entitled to participate in raising the child. Although the duty to pay child support comes from the simple fact of being a parent, whether you wanted to be a parent or not, being a parent doesn't come with the right to be involved in parenting a child. It is the child's right to benefit from the payment of child support and the child's right to be parented properly, to be provided with food, shelter, healthcare and clothing, and to be nurtured toward adulthood in the best way possible.

Children have these rights whether their parents are married, living together in a marriage-like relationship or have no relationship with each other at all. This section is for unmarried parents who have had a child but never lived together, and, as result, don't qualify as "spouses" under the Family Law Act. It talks about the legal issues unmarried parents may have to deal with and those they don't, and discusses the two most common issues parents have to deal with, child support and parenting children.

Introduction

The provincial Family Law Act applies to anyone who is the parent of a child, regardless of the nature of their relationship with the other parent or parents of their child, and regardless of whether they are the parent of the child as a result of natural reproduction, adoption or assisted reproduction.

The act talks about how to identify who the parents of a child are when the child is born by natural reproduction or assisted reproduction. When a child is adopted, the Family Law Act says that the child's parents are determined by the provincial Adoption Act.

The act also talks about how parents can:

1. ask for declarations and orders about who the guardians of a child are;
2. make agreements or ask for orders about parental responsibilities and parenting time with a child, if the parent is also a guardian of the child;
3. make agreements or ask for orders about contact with a child, if the parent is not a guardian of the child;
4. make agreements or ask for orders about the payment of child support; and,
5. ask for orders for the protection of people.

Parents who don't qualify as "spouses" under section 3 of the Family Law Act — see the first section in this chapter for more information about who qualifies as a spouse under the act — cannot use the act to ask for orders about:

1. the payment of spousal support;
2. the division of property and debt; or,
3. orders for the protection of property.

The federal Divorce Act only applies to people who are or were married to each other; it doesn't apply to people in unmarried relationships, including parents who aren't married to each other.

Relationships between people who aren't parents or spouses

Family law doesn't have much at all to do with people who are dating and don't have a child. They're not "spouses" under the Family Law Act, they're not "parents," and since they don't have a child, they're not "guardians." The Family Law Act doesn't apply to them because their relationship isn't one of the relationships the act talks about.

There are only a few ways the law can affect people in relationships like this. If there is violence or non-consensual sexual activity, the parts of the Criminal Code that talk about things like assault, battery, sexual assault, rape, stalking, unlawful confinement, and abduction might apply, and those are issues that the police deal with. If they sign a lease together, buy something together or take out a loan together, then the law of contract or the law of property might be used to figure out who's entitled to which assets and responsible for which obligations. If they buy property together, the provincial Partition of Property Act will let them ask the court to sell the property and divvy up the proceeds. I suppose that if they split up and start bad-mouthing each other on social media, then tort law and the law about defamation might also be relevant.

Unless there is something like this going on, when people who are dating each other split up, that's it, their relationship is over without any legal entitlements at all.

Relationships between people who are parents but aren't spouses

Family law does talk — and it talks a lot — about people who are parents. While parents who aren't spouses can have all the same legal issues as people who are dating, under the criminal law, the law of contract, the law of property, and tort law, their concerns will mostly revolve around parenting and supporting their child. While they might also be concerned about tax benefits and credits relating to their child, like the equivalent-to-spouse credit under the federal Income Tax Act, the Canada Child Benefit and the BC Child Opportunity Benefit, what we're really talking about is parenting and child support.

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 147 says this:

"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 his or her parents or guardians

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.

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.

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 when a man is the biological father of a child.

Section 26(2) of the Family Law Act describes the circumstances in which the court can assume that a man is the biological father of a child:

1. if he was married to the birth mother when the child was born or within 300 days of the child's birth;
2. if he married the birth mother after the child's birth and acknowledged that he is the father of the child;
3. if he lived with the birth mother in a "marriage-like relationships" within 300 days of the child's birth; or
4. if he signed the child's record of live birth.

These legal presumptions are helpful, but none of them conclusively prove that a particular man is the biological father of a particular child. That sort of positive proof requires a DNA test, and the court can order that a person take a DNA test under section 33 of the Family Law Act. DNA tests for relatedness are more than 99.9% accurate!

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,

1. one or two people who want to have the child, the intended parents, can be the parents of the child;
2. the donor of sperm or an egg is not usually a parent of the child;
3. a surrogate mother is usually a parent of the child; and,
4. the spouse of a surrogate mother is usually a parent of a 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.

What's especially important about these rules is that a person who is a parent as a result of an assisted reproduction agreement is a parent for all purposes of the law in British Columbia, including the family law and the law about wills and estates.

Adoption

People who adopt a child become the parents of that child when the court makes an adoption order under the provincial 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 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.

The rights and responsibilities of parents

Parents who aren't married and haven't lived together can make agreements or ask for orders about parenting their child and paying child support. The provincial Family Law Act is the law that the court will apply when making orders about guardianship, parenting and child support.

Child support

Child support is payable by anyone who is the parent of a child, regardless of the nature — or brevity — of the relationship that produced the child. The Family Law Act says, at section 147, that "each parent" has a duty to provide support for their child. Under section 150(1) of the act, child support is to be paid in the amount determined under the Child Support Guidelines.

Nothing in the Family Law Act or the Child Support Guidelines allows a parent to escape paying support through some quirk in the circumstances under which the child was conceived, including whether the pregnancy was planned or not, whether it came about as result of a sexual assault, or whether it came about as a result of some deception on the part of the birth mother. The only question that might be left open is whether or not the person being asked to pay child support is the "parent" of the child for whom support is sought. If that's an issue, a paternity test can always be taken under section 33 of the act.

You can find additional information about child support and the Child Support Guidelines in the Child Support chapter of this resource.

Parenting children

Under section 40(1) of the Family Law Act, only people who are the "guardians" of a child have parental responsibilities and parenting time with that child. People who are not the guardians of a child may have contact with the child, but do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, counsellors, and coaches.

Under section 39, the people who are presumed to be the guardians of a child are:

1. the child's parents, as long as they lived together;
2. a person who is a parent of a child under an assisted reproduction agreement; and,
3. 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 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.)

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:

1. settle for having contact with the child and not being able to participate in parenting the child;
2. try to prove that they regularly care for the child, in order to be recognized by the court as a guardian of the child who is entitled to participate in parenting the child; or,
3. 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 are discussed in more detail in the Guardianship, Parenting Arrangements and Contact section of the Children chapter, under the heading "Being a guardian and becoming a guardian."

Government benefits

The most important thing to know about government benefits is that most federal legislation defines a spouse as someone who has been in a cohabiting relationship for at least one year, as opposed to British Columbia's legislation which generally requires a two-year cohabiting relationship to qualify. As a result, someone in a relationship of at least one year may qualify for any federal benefits that depend on a spousal relationship, although they probably won't qualify for provincial benefits. People in a relationship of less than one year won't usually qualify for any spousal benefits at all.

Benefits and tax credits relating to children are available to anyone who is a parent, regardless of the nature of that person's relationship with the other parent. The websites of the Canada Revenue Agency and the government of British Columbia have a lot of information about federal and provincial benefits.

The federal government has a helpful online child benefits calculator that estimates the amount of benefits available from the different federal and provincial programs.

Resources and links

Legislation

• Family Law Act
• provincial Income Tax Act
• Universal Child Care Benefit Act
• federal Income Tax Act.

Links

• Canada child benefits calculator
• Canada Revenue Agency website "Overview of child and family benefits"
• BC Government website "Family Benefits"
• Legal Services Society's Living Together or Living Apart, chapter 1 on types of relationships
• Dial-A-Law Script "Introduction to Family Law"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 27 February 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.