Is an Unmarried Father a Guardian in BC? Rules for Common-Law Dads

If you were never married to the child's mother, you may wonder whether you have any legal say in decisions about your child. In British Columbia, the answer depends mainly on whether you have lived with the child.

This article explains the guardianship rules, how parentage is presumed, and the steps open to you if you are not currently a guardian.

This article covers the law of British Columbia.

The general rule on guardianship

Under section 39 of the Family Law Act, while the child's parents live together and after they separate, each parent is a guardian of the child. Separation alone does not end guardianship.

The exception matters for unmarried parents. A parent who has never lived with the child is not a guardian unless an exception in section 39(3) applies.

There is also an exception that works the other way. An agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian.

What lived with the child means

The test is whether the parent ever lived with the child. It is not the same as the test for presuming who the father is, which looks at living with the birth mother in a marriage-like relationship. Keep the two ideas separate, because a man can be presumed the father without being a guardian.

If you have never lived with the child, you can still be a guardian if one of these applies:

• you are a parent under the section 30 arrangements
• all guardians agree in writing that you are a guardian
• you regularly care for the child

Only a parent can become a guardian by agreement. A person who is not a parent needs a court order under section 51.

Parentage for an unmarried father

Where 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 father, no presumption applies, and where parentage is uncertain a court can make a declaration under section 31.

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.

Parental responsibilities include day-to-day decisions and care, where the child lives, education and activities, cultural and religious upbringing, health-care consent, and applying for passports and benefits. Unless an agreement or order says otherwise, each guardian may exercise all parental responsibilities after consulting the other guardians, unless consultation would be unreasonable or inappropriate.

A father who is not a guardian can apply to the court under section 51 to be appointed a guardian. You may apply at the same time for a parenting order allocating parental responsibilities and parenting time. The court decides on the child's best interests.

No particular parenting arrangement is presumed to be in the child's best interests, and the Act does not presume equal parenting time. The court looks at factors such as the child's health and emotional well-being, the child's views unless it would be inappropriate to consider them, the child's need for stability, and the history of the child's care.

A non-guardian can also be granted contact by a court order under section 59, with terms set by the court based on the child's best interests. A contact order can be changed, suspended or terminated if the child's needs or circumstances have changed.

For comparison, a stepparent does not become a guardian just by entering a relationship with a guardian, and needs a court appointment. Where the child is 12 or older, a non-parent appointment needs the child's written approval unless the court is satisfied the appointment is in the child's best interests.

What to do next

• Gather proof of any time you lived with the child and of regular care, such as school, medical and daily-routine records.
• Ask whether the mother and any other guardians will confirm your guardianship in writing.
• Collect documents on parentage, such as a signed Vital Statistics Act statement, if you have one.
• In Provincial Court, an application for a parenting order uses Form 3; in Supreme Court a family case starts with Form F3 Notice of Family Claim.
• In Provincial Court, a Parenting After Separation course must be completed before the first court date unless you are exempt, and the Certificate of Completion is the proof. An exemption is requested on Form 20. In Supreme Court the course is not mandatory, though the judge may suggest it.
• Speak with a family lawyer before filing, since the exact wording of the guardianship exceptions matters.

Frequently asked questions