Can a Stepparent Become a Child's Guardian in BC?

You may have helped raise a child for years, attending school events, handling bedtimes and paying for activities. Then a practical problem arises: a school, doctor or passport office asks who has legal authority to decide. Being a stepparent in daily life is not the same as being a guardian in law.

This article explains how guardianship works for stepparents in British Columbia under the Family Law Act: what does not make you a guardian, the court route that does, what the court will ask you about, and what you can still do if you never become one.

This article covers the law of British Columbia.

Why living with a guardian does not make you one

In British Columbia, a guardian is the person who holds legal responsibility for a child. Each parent is a guardian while they live together and after they separate, so separation alone does not end a parent's guardianship. The Act replaced the older ideas of custody and access with guardianship, parental responsibilities, parenting time and contact.

If a guardian marries or enters a marriage-like relationship with someone who is not a guardian, that person does not become a guardian by reason only of the relationship. A stepparent is a guardian only if a court appoints them.

Why an agreement is not enough

Some people assume that if both parents agree, a stepparent can be named as guardian in writing. The Act does not work that way. Only a parent can become a guardian by agreement; a person who is not a parent needs a court order under section 51.

This is different from an unmarried parent who has never lived with the child. That parent can become a guardian through a written agreement of all guardians or by regularly caring for the child. A stepparent is not a parent, so that route is not open to them.

Applying to the court under section 51

A stepparent applies to the court under section 51 for an order appointing them as a guardian. You must give the court details about your plans for the child's care and about your own history. Think about what a judge would want to know about you and your household before you start.

Where the child is 12 or older, a non-parent's appointment needs the child's written approval, unless the court is satisfied that the appointment is in the child's best interests.

The court decides on the best interests of the child only. Factors include the child's health and emotional well-being, the child's views unless it would be inappropriate to consider them, the strength of the child's relationships with significant people, the history of the child's care and the child's need for stability.

• Your plans for the child's care, schooling and health
• Your own history, as the court requires
• The child's written approval if the child is 12 or older, or why the appointment is still in the child's best interests
• Any request for a parenting order to be made at the same time

Asking for parenting arrangements at the same time

A person applying for guardianship may apply at the same time for a parenting order, which deals with the allocation of parental responsibilities and parenting time. Under the Act, only a guardian may have parental responsibilities and parenting time.

Because the Act presumes no particular arrangement, such as equal time or joint decision-making, is in a child's best interests, any request is judged on the facts of your family.

What you can do without guardianship

Only a guardian may have parental responsibilities, which include decisions about education, health-care consent, where the child lives and applying for a passport. Without a court order, a stepparent does not hold those responsibilities.

A person who is not a guardian may still have contact with a child. A court can grant contact under section 59, on terms it sets, and decides on the child's best interests. Contact can also be set by agreement with a guardian, but that agreement binds only if made by all guardians who decide with whom the child associates. A contact order can be changed if the child's needs or circumstances change.

Planning ahead and next steps

A guardian can appoint a successor guardian by will or prescribed form, or appoint a standby guardian. This matters because a surviving non-guardian parent does not automatically become a guardian when a guardian dies. Speak with a lawyer about whether naming a stepparent fits your situation.

• Confirm who the child's current guardians are
• Talk with the child's guardians about your plans
• Write down your plans for the child's care and relevant personal history
• Consider whether to ask for a parenting order at the same time
• Have a lawyer check the current wording of section 51 before you file

Details of section 51, including the rule for children aged 12 or older, are worth confirming against the current consolidated Act with a lawyer.

Frequently asked questions