Is an Unmarried Father a Guardian in British Columbia?

If you are an unmarried father in British Columbia, whether you are a guardian can affect your ability to make decisions for your child. The answer often turns on whether you ever lived with the child, not on whether you were married.

This article explains when guardianship arises, how it differs from being the child's legal parent, and what you can do if you are not a guardian. It is general information, and a lawyer can confirm your position.

This article covers the law of British Columbia.

When an unmarried father is a guardian

While the child's parents live together and after they separate, each parent is a guardian of the child, and separation alone does not end guardianship. Marriage is not the test.

An agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian.

If you never lived with the child

A parent who has never lived with the child is not a guardian unless one of the exceptions applies. The exceptions are:

• The parent is a parent under the section 30 arrangements.
• All guardians agree in writing that the parent is a guardian.
• The parent regularly cares for the child.

Government guidance puts it this way: an unmarried parent who never lived with the child becomes a guardian by a written agreement with the other parent naming them as guardian, or by regularly caring for the child.

Being the father is a separate question

Guardianship and parentage are different. When a child is not conceived by assisted reproduction, the parents are the birth mother and the biological father. A man is presumed to be the biological father if, among other things, he lived with the birth mother in a marriage-like relationship within 300 days before the birth or on the birth date, or signed a Vital Statistics Act section 3 statement with her.

If more than one man could be presumed the biological father, no presumption of parentage applies. Where parentage is uncertain, a court can make a declaration under section 31. Guardianship is a separate question. A parent who has never lived with the child is not a guardian unless one of the section 39(3) exceptions applies: the parent is a parent under the section 30 arrangements, all guardians agree in writing that the parent is a guardian, or the parent regularly cares for the child.

If you are not a guardian

A non-guardian parent can still have contact with the child but has no parental responsibilities. Only a guardian may have parental responsibilities and parenting time.

A father who is not a guardian can apply to the court under section 51 to be appointed a guardian. A person applying for guardianship may apply at the same time for a parenting order about parental responsibilities and parenting time. A written agreement can also make a parent a guardian in the situations described above.

A person who is not a parent cannot become a guardian by agreement. Only a parent can, and otherwise a court order is needed.

What to do next

• Gather proof of whether you ever lived with your child and how often you care for the child.
• Ask the other parent whether they will sign a written agreement naming you as a guardian.
• Keep any birth registration or Vital Statistics Act statement you signed.
• Before a Provincial Court application, check whether you must complete a Parenting After Separation course.
• Speak with a lawyer about applying to be appointed a guardian.

Frequently asked questions