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Difference between revisions of "Children Born Outside Marriage"

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{{REVIEWEDPLS | reviewer = [https://www.southcoastlaw.ca/renee-aldana/ Renée Aldana], South Coast Law Group |date= October 2018}} {{Dial-A-Law TOC|expanded = children}}
{{REVIEWEDPLS | reviewer = [https://www.southcoastlaw.ca/renee-aldana/ Renée Aldana], South Coast Law Group |date= October 2018}} {{Dial-A-Law TOC|expanded = children}}
Under the law, a '''child born outside marriage''' is treated the same as a child born to married parents. However, there are some implications for parents and other practical considerations.  
Under BC law, a child born outside of marriage is treated the same as a child born to married parents. However, there are some implications for parents and other practical considerations for parents who have children born outside of marriage.


==Understand the legal framework==
{{PLSStorybox
| image = [[File:Monika.png|link=]]
| text      = “My partner Janine and I have a one-year-old daughter. We were together for 21 months before we broke up. Janine told me that because we weren’t married, she could decide when I saw our daughter. I spoke to a family lawyer for free and learned it didn’t matter that our daughter was born outside of marriage. I have the same parental rights and obligations as a married parent. After some help from a mediator, we now have a parenting agreement.”
– Monika, Fort St. John, BC
}}
 
==What you should know==


===The legal status of a child born outside of marriage===
===The legal status of a child born outside of marriage===
There is no legal difference in the status of a child born to someone who is married, to a single parent, to a person in a common-law relationship, to a couple in a same-sex relationship, or to a couple in an opposite-sex relationship. A child born outside marriage is treated in exactly the same way as a child born to married parents.
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#Part_1_Interpretation_787 Under the BC ''Family Law Act''], a child is a person under 19 years old. There’s no difference in the legal status of a child born to someone who is married and a child born to someone who is not married.
 
Put another way, a child born outside of marriage is treated exactly the same in BC law as a child born to married parents. It makes no difference whether a child is born to a single parent, to a person in a common-law relationship, to a couple in a same-sex relationship, or to a couple in an opposite-sex relationship.


===Registering the birth of a child born outside of marriage===
===Registering the birth of a child born outside of marriage===
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-479/latest/rsbc-1996-c-479.html#sec3_smooth law in BC], a child born in British Columbia must be registered with the government within 30 days after the birth. Birth registration can be done online at [https://www2.gov.bc.ca/gov/content/life-events/birth-adoption/births/birth-registration gov.bc.ca/vitalstatistics], unless additional parents (other than the mother and father) are being recorded. You can request a paper birth registration form by calling the [https://www2.gov.bc.ca/gov/content/life-events/birth-adoption/births/birth-registration Vital Statistics Agency], the government office that handles birth registrations. Call 250-952-2681 in Victoria, or 1-888-876-1633 elsewhere in BC.
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-479/latest/rsbc-1996-c-479.html#sec3_smooth Under the law in BC], a parent must register the birth of a child with the government. This has to be done '''within 30 days after the child’s birth'''.


Both parents must sign the birth registration form, unless one or both parents are incapable. If the father is unknown or doesn’t acknowledge he is the father, the child’s mother can sign the birth registration alone.  
[https://www2.gov.bc.ca/gov/content/life-events/birth-adoption/births/birth-registration Birth registration can be done online] by the birth mother and the other parent. Each parent must be present during the online registration to certify the registration.
 
Another option is to ask for a paper birth registration form by calling the Vital Statistics Agency. This is the government office that handles birth registrations. Call 250-952-2681 in Victoria, or 1-888-876-1633 elsewhere in BC.
 
Both parents must sign the birth registration form, unless one or both parents are incapable. If the child’s father is unknown or doesn’t acknowledge he’s the father, the child’s mother can sign the birth registration form alone.


===Choosing the child’s last name===
===Choosing the child’s last name===
The parents may choose any last name they like for a child, if they agree. If the parents do not agree on a last name for a child, the child’s last name will consist of the parents’ surnames hyphenated or combined in alphabetical order.  
The parents may choose any last name they like for a child, as long as they agree on it. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-479/latest/rsbc-1996-c-479.html#sec4_smooth Under BC law], if the parents can’t agree on a last name for a child, the child’s last name will be:
 
* the parents’ last names '''hyphenated''' (for example, “Leung-Boden”), or
* the parents’ last names combined in '''alphabetical order''' (for example, “Boden Leung”).


If only the birth mother signs the birth registration, she can choose the child’s last name.
If only the birth mother signs the birth registration, she can choose the child’s last name.


===Placing a child for adoption===
===Placing a child for adoption===
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec4_smooth law in BC], a parent or guardian of a child may place the child for adoption. This starts a process to legally transfer parental responsibilities for the child to another family.  
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec4_smooth Under the law in BC], a parent or guardian of a child may place the child for adoption. This starts a process to legally transfer parental rights and responsibilities for the child to another family.
 
Usually both birth parents have to agree to place a child for adoption. A '''birth mother'''’s written consent is required unless the child is in the permanent care of the child welfare authorities.


A '''birth mother'''’s consent to an adoption is required unless the child is in the permanent care of the child welfare authorities. A birth mother’s consent to the adoption of her child is valid only if the child is at least 10 days old when the consent is given. The consent must be in a specific written form, and other documents are also required.
A '''biological father'''’s consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be found or if to do so is in the child’s best interests.


'''A biological father'''’s consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be located or if to do so is in the child’s best interests.  
For more on adoption, [[Adoption|see our information on adoption]] and [[Adoption Registries|adoption registries]].


For more on adoption, see our information on [[Adoption of a Child (No. 145)|adoption (no. 145)]] and [[Adoption Registries (No. 146)|adoption registries (no. 146)]].
===Parents are generally guardians of a child===
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth Under the law in BC], while a child’s parents are living together and after they separate, each parent is the child’s '''guardian'''.


===Parents are generally guardians of their child===
A parent who has never lived with their child is '''not''' a guardian unless:
Under the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth law in BC], while a child’s parents are living together, each parent is the child’s '''guardian'''.


Guardians generally, but not always, have '''parental responsibilities''' for a child. This means they can make decisions for and about a child. We explain this shortly.
* the parent regularly cares for the child,
* the parent and all of the child's guardians make an agreement that the parent is also a guardian, or
* they are a parent under a written agreement providing for the child’s birth through assisted reproduction.


A parent who never lives with their child is not the child's guardian unless one of the following applies:
A parent who isn’t a child’s guardian does not have “parental responsibilities” for the child. This means that parent doesn’t have a say in how the child is raised.
*they are a parent under a written agreement providing for the child’s birth through assisted reproduction,
*the parent and all of the child's guardians make an agreement that the parent is also a guardian, or
*the parent regularly cares for the child.


If a parent isn’t a guardian, the parent can apply to the court to be appointed as the guardian of their child. We explain this shortly.
If a parent isn’t a guardian of their child, they can apply to court to become one. Other people (such as grandparents or step-parents) can also apply to court to become guardians.


===Guardians generally have parental responsibilities for a child===
===Guardians have parental responsibilities and parenting time===
'''Parental responsibilities''' means having the responsibility to decide how to raise the child, based on the child’s best interests. Parental responsibilities include deciding where the child lives and goes to school, how the child gets treated when sick, and giving or withholding permission on behalf of the child.
[http://www.bclaws.ca/civix/document/id/complete/statreg/11025_04#section40 Under BC law], guardians of a child have '''parental responsibilities''' and '''parenting time'''. Together, these are called '''parenting arrangements'''.


Parental responsibilities can be shared between two or more guardians, meaning that all the guardians are responsible for making decisions about the child and must consult each other before making decisions. Parental responsibilities can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, and can make those decisions without having to consult the other guardians. The allocation of parental responsibilities can be done through a separation agreement or parenting plan agreement signed by all the guardians. The allocation can also be done by a court order, if an agreement cannot be reached.
====Parental responsibilities====
Parental responsibilities are the duties that guardians have while caring for a child. They are also the decisions guardians make about how to raise the child, based on the child’s best interests. This includes things like deciding where the child lives and goes to school, how the child gets treated when sick, the religion practiced by the child, and the language they speak.


The time a guardian spends with a child is called '''parenting time'''. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision making about day-to-day matters involving the child.
Where two or more guardians share parental responsibilities, they must consult each other when making their decisions. But parental responsibilities can also be divided between a child’s guardians in a separation agreement, parenting plan, or court order. For example, a court might order that one guardian should be able to make final decisions about a child’s healthcare or education, if that would be in the child’s best interest.


===If a parent isn’t a guardian===
====Parenting time====
A parent who is not a guardian of a child does not have parental responsibilities for the child. They are not entitled to be consulted when decisions are being made about the child.
The time a guardian spends with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child, and making decisions about day-to-day matters involving the child.


The time someone who is not a guardian has with a child is called '''contact'''.
===A parent has an obligation to pay child support===
'''Child support''' is every child’s right. Each parent is legally responsible to financially support their child. That’s the case whether the parents are married spouses, unmarried spouses, or not spouses at all. Even if you never lived with your child or the child’s other parent, you are still obligated to pay child support. A step-parent may also have an obligation to financially support a child.
 
The obligation to support a child lasts until the child reaches 19 years old (the age of majority in BC). A parent’s child support obligation may continue beyond age 19. This can happen if the child is financially dependent on the parent because of disability or illness, or because the child is pursuing post-secondary education.
 
For more about support obligations, [[Child Support|see our information on child support]].


==Common questions==
==Common questions==


===How can I become a child’s guardian?===
===Can a child’s birth certificate be changed later to show the other parent?===
If you are not a guardian of a child and you want to become a guardian, your choices depend on your relationship to the child and the views of the child's other guardians:
If the parents agree, a child’s birth registration can be changed to list them both as parents. The parents can also change the child’s name on the birth registration.
*If you are a parent, you can become a guardian by an agreement with the child's guardians.
*If you are not a parent or if the other guardians don’t agree with you becoming a guardian, you can apply to court to be made a guardian.
*You can also become a guardian, whether you're a parent or not, through a guardian's will or an appointment when a guardian dies or becomes incapacitated.


If you '''apply to court''' to become a guardian, the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth law in BC] requires you to provide certain information about why the order would be in the best interests of the child. You must complete a special '''affidavit''' (a legal document where you make statements about facts you say are true), get a criminal records check, a records check from the child welfare authorities, and provide certain information about any children that are and have been in your care.
If the parents don’t agree, the parent who wants to have their name added can apply to court for an order declaring they are the child’s parent. They can also ask that a child’s birth certificate be changed, including a change to the child’s last name. An application to the Vital Statistics Agency to change the child’s birth certificate can follow.


===Can I get child support for a child born outside marriage?===
Before making name changes, though, the court has to believe that the change is in the child’s best interests. And if the child is age 12 or older, the child must consent in writing to the name change. If these conditions are satisfied, the court may order a change of the child’s last name to be the last name of either parent or a hyphenated combination of their last names.
'''Child support''' is a right of the child. Each parent is legally responsible for the financial support of their children, whether the parents are married to each other or not. For more on these responsibilities, see our information on [[Child Support (No. 117)|child support (no. 117)]].


===What are the inheritance rights of a child born outside of marriage?===
===What are the inheritance rights of a child born outside marriage?===
The right of any child to an inheritance depends on whether the parent made a will and whether the parent has a spouse or other children at the time of their death.
What a child is entitled to inherit depends on a couple of things: whether the parent made a will, and whether the parent has a spouse or other children at the time of their death.


Under the [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec21_smooth law in BC], if a person dies without a will and has a spouse, the spouse is entitled to a certain share of the deceased’s estate. The deceased’s children split what’s left, whether they’re born outside marriage or to married parents.
[https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec21_smooth Under the law in BC], if a person dies without a will and has a spouse, the spouse is entitled to a certain share of their estate. The deceased’s children split what’s left, whether they’re born outside the marriage or to married parents.


If a person dies without a will and doesn’t have a spouse, the deceased’s children are entitled to share in the estate, whether they’re born outside marriage or not.
If a person dies without a will and doesn’t have a spouse, their children are entitled to share in the whole estate, whether they’re born outside the marriage or not.


If a person dies with a will, their children receive whatever the deceased left to them in the will. But any child (whether born outside of marriage or to married parents) can apply to court to vary the will if they feel their portion of the estate is not "adequate, just and equitable in the circumstances". [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec60_smooth BC law] requires a person in their will to make adequate provision for the proper maintenance and support of their spouse and children.  
If a person dies with a will, their children receive whatever the deceased left to them in the will. But any child (whether born outside of marriage or to married parents) can apply to court to change the will if they feel their portion of the estate is not "adequate, just and equitable in the circumstances." [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec60_smooth BC law] requires a person in their will to provide adequate support for their spouse and children.


For more on inheritance rights, see our information on [[Challenging a Will (No. 179)|Challenging a Will (no. 179)]] and [[When Someone Dies Without a Will (No. 177)|When Someone Dies Without a Will (No. 177)]].  
For more on inheritance rights, [[Challenging a Will|see our information on challenging a will]] and [[When Someone Dies Without a Will|when someone dies without a will]].


===Can a child’s birth certificate be changed later to show the other parent?===
===If I break up with the other parent, how do issues affecting our child get sorted?===
If the parents agree, they can change a child’s birth registration to list them both as parents. The parents can also change the child’s name on the birth registration.  
If you and your child’s other parent break up, you need to figure out how you’ll make decisions about the child. This includes where the child will live and how much time the child will spend with each parent.
 
If you both agree on these issues, you can make a written agreement. [[Separation and Separation Agreements|We have information on separation agreements]].
 
If you can’t agree on these issues, you might consider '''mediation'''. This is a process where parties in conflict meet with a neutral person, called a mediator. The mediator helps you find a solution you can both agree on.
 
If you still can’t come to an agreement, one of you may decide to bring a court action. A judge will make decisions according to the best interests of the child. The court can also make decisions about how often the child will see each parent (called '''parenting time''' or '''contact'''), and how parenting decisions will be made (called '''parental responsibilities''').
 
For more on these issues, [[Guardianship, Parenting Arrangements and Contact|see our information on guardianship, parenting arrangements, and contact]].
 
===Are parenting time and child support related?===
Paying child support is a legal obligation. But, it’s not simply a trade of money for time with the child. Nor is it a fee that’s paid to have time with the child. Though there are exceptions (such as in shared parenting situations), child support is not determined by the amount of parenting time or contact a parent has with a child. Rather, child support is determined based on the parent’s income. For more on this, [[Child Support|see our information on child support]].
 
===Who can become a child’s guardian?===
While a child’s parents are living together and after they separate, each parent is the child’s guardian.
 
A parent who has never lived with their child is a guardian if they regularly care for the child. They can also become a guardian by making a written agreement with the child's other guardians. Or they can apply to court to be made a guardian.
 
A person who isn’t a parent can apply to court to be made a guardian.
 
Someone can also become a child’s guardian through being named as one in a guardian's will. Or by being appointed when a guardian dies or becomes incapacitated.
 
{{PLSTipsbox
| text = Stepparents don't automatically become guardians. Not even if they're living with your children. If you want a stepparent to become a guardian for your children on your death, you have to appoint them in your will or [https://familylaw.lss.bc.ca/sites/default/files/2019-04/appointmentStandbyTestamentaryGuardian_SC_PC_FORM.pdf in an appointment of standby or testamentary guardian form].
}}
 
===What’s involved in applying to court to become a guardian?===
If you apply to court to become a guardian, [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth the law in BC] requires you to provide information about why that would be in the best interests of the child. You have to:
 
* fill out a special '''affidavit''' (a legal document where you make statements about facts you say are true)
* get a criminal record check
* get a record check from the child protection authorities
* provide information about any children that are and have been in your care
 
===I have a new spouse. Can we change my child’s last name to my spouse’s last name?===
A parent can apply to legally change their child’s last name. To do so, you need the agreement of several others involved. All other guardians of the child must agree. Your spouse must agree, if you want to change the child’s name to your spouse’s last name. And your child must agree, if the child is age 12 or over.
 
The Vital Statistics Agency can decide to approve an application for a name change even if a required consent is missing. For more about changing a child’s last name, [https://www2.gov.bc.ca/gov/content/life-events/legal-changes-of-name/legal-change-of-name-application see the agency’s website].
 
===Does a stepparent have an obligation to pay child support?===
Quite possibly. [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec146_smooth Under the law in BC], a '''stepparent''' is a spouse of the child's parent who lives with the child's parent and the child.
 
A stepparent may have a duty to provide support for a stepchild if:
 
* they contribute to the support of the child for at least one year, and
* a claim for child support is made against the stepparent '''within one year''' of their last contribution.
 
The stepparent's obligation to pay child support is '''secondary''' to that of the child's parents and guardians. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long the child lived with the stepparent. A number of factors come into play. It’s a good idea to consult a lawyer if a stepparent is involved.
 
For more about support obligations, [[Child Support|see our information on child support]].
 
===I’m in a common-law relationship. Can I adopt my spouse’s child?===
You can apply to adopt a child in BC if you are 19 years or older and live in BC. You don't need to be married to adopt. You can apply to adopt if you're single or in an opposite-sex or same-sex relationship. For more on adoption, [[Adoption|see our information on adoption]] and [[Adoption Registries|adoption registries]].
 
===My ex-partner is abusive. What if I’m concerned for my child’s safety?===
If you or your children are being threatened by a former partner, you can apply for a '''protection order'''. This is a court order to protect one person from another.


If the parents don’t agree, the other parent may apply to court to establish the child’s parentage and ask for a change to the child’s birth certificate, including a change to the child’s last name.
Anyone can apply for a protection order on behalf of a family member (such as a child) whom they believe is at risk of family violence. A protection order can say your partner must stay away from you and your children. It can also restrict how your partner communicates with you.


Before making name changes, however, the court must consider the change to be in the best interests of the child. The court must also consider the wishes of any child over age seven and have the written consent of children over age 12 to the change in last name. If these conditions are satisfied, the court may order the last name to be the last name of either parent or a hyphenated combination of their last names.
If your partner breaks this order, they can face criminal charges. For more on protection orders and other ways to stay safe, [[Family Violence|see our information on family violence]].


==Get help==
==Who can help==


===With more information===
===With more information===


The wikibook '''''JP Boyd on Family Law''''' explains the legal issues affecting children.
The wikibook ''JP Boyd on Family Law'' explains legal issues affecting children.
:Web: [http://wiki.clicklaw.bc.ca/index.php/Children_in_Family_Law_Matters wiki.clicklaw.bc.ca]
 
* [https://wiki.clicklaw.bc.ca/index.php/Children_in_Family_Law_Matters Visit website]
 
Legal Aid BC’s '''Family Law website''' has information and self-help guides on legal issues affecting children.
 
* [https://familylaw.lss.bc.ca/children Visit website]
 
===Free and low-cost legal help===
Family justice counsellors in '''Family Justice Centres''' throughout BC can help you with guardianship, parenting, child support, and related issues. Their services are free.
 
* Call 1-800-663-7867 (toll-free)
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Visit website]
 
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].


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