Children Born Outside Marriage (Script 140)

From Clicklaw Wikibooks

This script discusses issues relating to children born to parents who aren’t married, including parents in unmarried spousal relationships, sometimes called common-law relationships. These issues include birth registration, guardianship, parenting arrangements and contact, inheritance rights, and so on.

What is 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 legally married, to a single mother, to a person in an unmarried spousal 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 inside marriage.

How is the birth registered when a child is born outside of marriage?

BC’s Vital Statistics Act requires that a child born in BC must be registered with the government by filing a Registration of Live Birth within 30 days after the birth. The Act usually requires both parents to sign this form, unless one or both parents are incapable. If the father is unknown or doesn’t acknowledge that he is the father, the child’s mother can sign the birth registration alone.

How is the child’s last name chosen?

The parents may choose any last name they like, if they agree. Otherwise, the child’s last name will be a hyphenated combination of both surnames in alphabetical order. If only the birth mother signs the birth registration, she can choose the last name.

Can the child’s birth certificate be changed later to show the other parent?

If the parents agree, they can amend the birth registration to list them both as parents and, if they want, to change the child’s name. If they 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.

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 children over 12 must agree 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.

The Vital Statistics Agency handles birth registrations

For more information, call the Vital Statistics Agency at 604.660.2937 in the lower mainland, 250.952.2681 in Greater Victoria, and toll free 1.800.663.8328 if you live elsewhere in BC. Also check the Agency’s website at www.vs.gov.bc.ca.

Does a parent have to consent to the adoption of his or her child?

Say a single mother wants her child to be adopted by another family. In this case, BC’s Adoption Act says that the consent of the biological father is usually required. The father must be notified about the proposed adoption, unless the court rules that it’s not in the child’s best interests or the circumstances justify not giving the father notification. There is also a Birth Father Registry that will ensure that registered fathers are notified of a proposed adoption.

For more information on adoption, refer to refer to script 145 on “Adoption” and script 146 on “Adoption Registries”.

Is a parent automatically a guardian of his or her child?

Sometimes. The Family Law Act says that parents who live together after their child’s birth are the child’s guardians, both during their relationship and after they separate. For parents who never lived together after their child was born, they are only presumed to be a guardian of their child if:

  • they are a parent because an assisted reproduction agreement says they are a parent;
  • the parent and all of the child’s guardians make an agreement that the parent will be a guardian; and,
  • they regularly care for the child.

However, this also means that a single father or single mother who never lived with the other parent after the child’s birth is not a guardian of his or her child, even if the parent cares for the child full time. This is probably a mistake in the writing of the legislation that will probably be corrected in the future.

If a parent isn’t a guardian, the parent can apply to the court to be appointed as the guardian of his or her child.

What does “guardianship” mean?

People who are the guardians of a child have parental responsibilities, the responsibility for making decisions about how the child is nurtured and raised, and the duty of making those decisions in the child’s best interests. Parental responsibilities include making decisions about 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.

Parental responsibilities can be shared between two or more guardians, meaning that that they are all responsible for making decisions about the child and must consult each other when 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 time a guardian has 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.

What does it mean if a parent isn’t a guardian?

A person who isn’t a guardian of a child, including a parent who isn’t a guardian, doesn’t have any parental responsibilities for the child and isn’t entitled to be consulted when decisions are being made about the child.

The time someone who isn’t a guardian has with a child is called contact.

How do you apply to be appointed as a guardian? Only people who aren’t already guardians need to be appointed as a guardian. To be appointed, you must apply to court and must complete a special affidavit required by the court rules. This affidavit requires you to get a criminal records check, a protection order registry check and a records check from the Ministry for Children and Family Development, and to provide certain information about the children that are and have been in your care.

Can you get child support for children born outside marriage?

Child support is a right of the child not the parent, and each parent is legally responsible for the financial support of their children, whether the parents are married to each other or not.

For more information on child support, refer to script 117 on "Child Support”.

What are the inheritance rights of children born outside of marriage?

The rights depend on whether or not the parent made a will and whether the parent has a spouse or other children at the time of death:

  • If a person has a spouse and dies without a will, the spouse is entitled to a certain share of the dead person’s estate and the person’s children split what’s left, whether they’re born outside marriage or not.
  • If a person dies without a will and doesn’t have a spouse, the person’s children are entitled to share in the dead person’s estate, whether they’re born outside marriage or not.
  • If a person dies with a will, children born outside of marriage will receive whatever the dead person has left to the children in his or her will.

However, the child can apply to vary the will if the child believes that he or she didn’t receive a fair share of the dead person’s estate.

For more information on inheritance rights, refer to script 179 on "The Disappointed Beneficiary” and script 177 on “What Happens When You Die Without a Will”. As wills can be complicated, you should get advice from a lawyer.

More information

  • For more information about family law and children, see the Children page of the wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC.


[updated November 2014]

The above was last reviewed for accuracy by JP Boyd.


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