Is an Unmarried Father Automatically a Guardian in British Columbia?

If you were never married to the child's mother, you may wonder whether the law treats you as a guardian. The answer depends less on your marriage status than on whether you have lived with the child and whether you are legally the child's parent.

This article explains the general rules in British Columbia's Family Law Act, the exceptions that matter most to unmarried fathers, and the steps open to you if you are not currently a guardian.

This article covers the law of British Columbia.

Guardianship replaced custody and access

The Family Law Act replaced the old ideas of custody and access with guardianship, parental responsibilities, parenting time and contact. Guardianship is the legal status that lets a person make major decisions about a child.

The starting rule is that while a child's parents live together and after they separate, each parent is a guardian. Separation on its own does not end guardianship. An agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian.

Parentage comes first

Before guardianship, the law asks whether you are a parent. Where a child was 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 he signed a Vital Statistics Act statement with her. If more than one man could be presumed the father, no presumption applies, and where parentage is uncertain a court can make a declaration.

When living with the child makes the difference

A parent who has never lived with the child is not a guardian unless an exception applies. The exceptions are that the parent is a parent under the arrangements referred to in section 30 of the Act, all guardians agree in writing that the parent is a guardian, or the parent regularly cares for the child.

Government guidance puts it plainly: an unmarried parent who never lived with the child becomes a guardian through a written agreement with the other parent naming them as guardian, or by regularly caring for the child. Do not confuse this with the 300-day presumption above, which is about proving parentage, not guardianship.

What a non-guardian parent can still have

Only a guardian may have parental responsibilities and parenting time. Parental responsibilities include day-to-day decisions, where the child lives, education, health-care consent, passports and starting legal proceedings for the child.

A parent who is not a guardian can still have contact with the child, but has no parental responsibilities.

Becoming a guardian and what to do next

A father who is not a guardian can apply to the court to be appointed one. Only a parent can become a guardian by agreement; a person who is not a parent needs a court order. You can apply for guardianship and a parenting order at the same time.

• Gather proof of where you have lived and how often you have cared for the child.
• Ask whether the other parent will sign a written agreement naming you as guardian.
• Collect any birth registration or signed statements relevant to parentage.
• If you are heading to court, find out whether your case belongs in Provincial Court or Supreme Court.
• Speak with a family lawyer before filing, because your facts decide which route fits.

In Provincial Court, a parenting application starts with Form 3. In Supreme Court, a family case starts with a Notice of Family Claim, Form F3.

Frequently asked questions