2,553
edits
Difference between revisions of "Children Born Outside Marriage"
From Clicklaw Wikibooks
no edit summary
| (14 intermediate revisions by 2 users not shown) | |||
| Line 1: | Line 1: | ||
{{REVIEWEDPLS | reviewer = [ | {{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-rapoport/ Samantha Rapoport], Brown Henderson Melbye |date= April 2020}} {{Dial-A-Law TOC|expanded = children}} | ||
Under BC law, a child born outside of marriage is treated the same as a child born to married parents. However, there are some implications for parents and other practical considerations for parents who have children born outside of marriage. | Under BC law, a child born outside of marriage is treated the same as a child born to married parents. However, there are some implications for parents and other practical considerations for parents who have children born outside of marriage. | ||
{| class="wikitable" | |||
|align="left"|'''Alert!''' | |||
This information has been updated to reflect [https://www.provincialcourt.bc.ca/enews/enews-27-04-2021 new Provincial Court Family Rules] that took effect on May 17, 2021. | |||
|} | |||
==What you should know== | |||
===The legal status of a child born outside of marriage=== | |||
{{PLSStorybox | {{PLSStorybox | ||
| image = [[File:Monika.png|link=]] | | image = [[File:Monika.png|link=]] | ||
| text = “My partner Janine and I have a one-year-old daughter. We were together for 21 months before we broke up. Janine told me that because we weren’t married, she could decide when I saw our daughter. I spoke to a family lawyer for free and learned it didn’t matter that our daughter was born outside of marriage. I have the same parental rights and obligations as a married parent. After some help from a mediator, we now have a parenting agreement.” | | text = “My partner Janine and I have a one-year-old daughter. We were together for 21 months before we broke up. Janine told me that because we weren’t married, she could decide when I saw our daughter. I spoke to a family lawyer for free and learned it didn’t matter that our daughter was born outside of marriage. I have the same parental rights and obligations as a married parent. After some help from a mediator, we now have a parenting agreement.” <br/>– Monika, Fort St. John, BC | ||
– Monika, Fort St. John, BC | |||
}} | }} | ||
Under the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#Part_1_Interpretation_787 BC ''Family Law Act''], a child is a person under 19 years old. There’s no difference in the legal status of a child born to someone who is married and a child born to someone who is not married. | |||
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#Part_1_Interpretation_787 | |||
Put another way, a child born outside of marriage is treated exactly the same in BC law as a child born to married parents. It makes no difference whether a child is born to a single parent, to a person in a common-law relationship, to a couple in a same-sex relationship, or to a couple in an opposite-sex relationship. | Put another way, a child born outside of marriage is treated exactly the same in BC law as a child born to married parents. It makes no difference whether a child is born to a single parent, to a person in a common-law relationship, to a couple in a same-sex relationship, or to a couple in an opposite-sex relationship. | ||
| Line 35: | Line 39: | ||
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec4_smooth Under the law in BC], a parent or guardian of a child may place the child for adoption. This starts a process to legally transfer parental rights and responsibilities for the child to another family. | [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec4_smooth Under the law in BC], a parent or guardian of a child may place the child for adoption. This starts a process to legally transfer parental rights and responsibilities for the child to another family. | ||
Usually both birth parents have to agree to place a child for adoption. A '''birth | Usually both birth parents have to agree to place a child for adoption. A '''birth mother’s''' written consent is required unless the child is in the permanent care of the child protection authorities. | ||
A '''biological | A '''biological father’s''' consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be found or if to do so is in the child’s best interests. | ||
For more on adoption, [[Adoption of a Child | For more on adoption, [[Adoption of a Child|see our information on adoption]] and [[Adoption Registries|adoption registries]]. | ||
===Parents are generally guardians of a child=== | ===Parents are generally guardians of a child=== | ||
| Line 60: | Line 64: | ||
Parental responsibilities are the duties that guardians have while caring for a child. They are also the decisions guardians make about how to raise the child, based on the child’s best interests. This includes things like deciding where the child lives and goes to school, how the child gets treated when sick, the religion practiced by the child, and the language they speak. | Parental responsibilities are the duties that guardians have while caring for a child. They are also the decisions guardians make about how to raise the child, based on the child’s best interests. This includes things like deciding where the child lives and goes to school, how the child gets treated when sick, the religion practiced by the child, and the language they speak. | ||
Where two or more guardians share parental responsibilities, they must consult each other when making their decisions. But parental responsibilities can also be divided between a child’s guardians in a separation agreement, parenting plan, or court order. For example, a court might order that one guardian should be able to make final decisions about a child’s healthcare or education, if that would be in the child’s best | Where two or more guardians share parental responsibilities, they must consult each other when making their decisions. But parental responsibilities can also be divided between a child’s guardians in a separation agreement, parenting plan, or court order. For example, a court might order that one guardian should be able to make final decisions about a child’s healthcare or education, if that would be in the child’s best interests. | ||
====Parenting time==== | ====Parenting time==== | ||
| Line 99: | Line 103: | ||
If you can’t agree on these issues, you might consider '''mediation'''. This is a process where parties in conflict meet with a neutral person, called a mediator. The mediator helps you find a solution you can both agree on. | If you can’t agree on these issues, you might consider '''mediation'''. This is a process where parties in conflict meet with a neutral person, called a mediator. The mediator helps you find a solution you can both agree on. | ||
If you still can’t come to an agreement, one of you may decide to | If you still can’t come to an agreement, one of you may decide to start a court action. A judge will make decisions according to the best interests of the child. The court can also make decisions about how often the child will see each parent (called '''parenting time''' or '''contact'''), and how parenting decisions will be made (called '''parental responsibilities'''). | ||
For more on these issues, [[ | For more on these issues, see our information about [[Guardianship, Parenting Arrangements and Contact|guardianship, parenting arrangements, and contact]] and [https://dialalaw.peopleslawschool.ca/category/families/resolving-family-disputes/ resolving family disputes]. | ||
===Are parenting time and child support related?=== | ===Are parenting time and child support related?=== | ||
Paying child support is a legal obligation. But, it’s not simply a trade of money for time with the child. Nor is it a fee that’s paid to have time with the child. Though there are exceptions (such as in shared parenting situations), child support is not determined by the amount of parenting time or contact a parent has with a child. Rather, child support is determined based on the parent’s income. For more on this, [[Child Support|see our information on child support]]. | Paying child support is a legal obligation. But, it’s not simply a trade of money for time with the child. Nor is it a fee that’s paid to have time with the child. Though there are exceptions (such as in shared parenting situations), child support is not determined by the amount of parenting time or contact a parent has with a child. Rather, child support is determined based on the parent’s income. For more on this, [[Child Support (No. 117)|see our information on child support]]. | ||
===Who can become a child’s guardian?=== | ===Who can become a child’s guardian?=== | ||
| Line 115: | Line 119: | ||
Someone can also become a child’s guardian through being named as one in a guardian's will. Or by being appointed when a guardian dies or becomes incapacitated. | Someone can also become a child’s guardian through being named as one in a guardian's will. Or by being appointed when a guardian dies or becomes incapacitated. | ||
{ | {| class="wikitable" | ||
| | |align="left"|'''Stepparents and guardians''' | ||
Stepparents don't automatically become guardians. Not even if they're living with your children. If you want a stepparent to become a guardian for your children on your death, you have to appoint them in your will or [https://family.legalaid.bc.ca/sites/default/files/2019-04/appointmentStandbyTestamentaryGuardian_SC_PC_FORM.pdf in an appointment of standby or testamentary guardian form]. | |||
|} | |||
===What’s involved in applying to court to become a guardian?=== | ===What’s involved in applying to court to become a guardian?=== | ||
If you apply to court to become a guardian, [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth | If you apply to court to become a guardian, the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth law in BC] requires you to provide information about why that would be in the best interests of the child. You have to: | ||
* fill out a [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa733.pdf?forcedownload=true guardianship affidavit] that provides information about any children that are or have been in your care (an affidavit is a legal document where you make statements about facts you say are true), | |||
* fill out a | * get a criminal record check, | ||
* get a criminal record check | * get a record check from the child protection authorities, and | ||
* get a record check from the child protection authorities | * get a record check from the BC government’s [https://www2.gov.bc.ca/gov/content/safety/crime-prevention/protection-order-registry protection order registry]. | ||
* | |||
===I have a new spouse. Can we change my child’s last name to my spouse’s last name?=== | ===I have a new spouse. Can we change my child’s last name to my spouse’s last name?=== | ||
| Line 142: | Line 146: | ||
The stepparent's obligation to pay child support is '''secondary''' to that of the child's parents and guardians. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long the child lived with the stepparent. A number of factors come into play. It’s a good idea to consult a lawyer if a stepparent is involved. | The stepparent's obligation to pay child support is '''secondary''' to that of the child's parents and guardians. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long the child lived with the stepparent. A number of factors come into play. It’s a good idea to consult a lawyer if a stepparent is involved. | ||
For more about support obligations, [[Child Support|see our information on child support]]. | For more about support obligations, [[Child Support (No. 117)|see our information on child support]]. | ||
===I’m in a common-law relationship. Can I adopt my spouse’s child?=== | ===I’m in a common-law relationship. Can I adopt my spouse’s child?=== | ||
You can apply to adopt a child in BC if you are 19 years or older and live in BC. You don't need to be married to adopt. You can apply to adopt if you're single or in an opposite-sex or same-sex relationship. For more on adoption, [[Adoption|see our information on adoption]] and [[Adoption Registries|adoption registries]]. | You can apply to adopt a child in BC if you are 19 years or older and live in BC. You don't need to be married to adopt. You can apply to adopt if you're single or in an opposite-sex or same-sex relationship. For more on adoption, [[Adoption of a Child|see our information on adoption]] and [[Adoption Registries|adoption registries]]. | ||
===My ex-partner is abusive. What if I’m concerned for my child’s safety?=== | ===My ex-partner is abusive. What if I’m concerned for my child’s safety?=== | ||
If you or your children are being threatened by a former partner, you can apply for a '''protection order'''. This is a court order to protect one person from another. | If you or your children are being threatened by a former partner, you can apply for a '''protection order''' in either Provincial Court or Supreme Court. This is a court order to protect one person from another. | ||
Anyone can apply for a protection order on behalf of a family member (such as a child) whom they believe is at risk of family violence. A protection order can say your partner must stay away from you and your children. It can also restrict how your partner communicates with you. | Anyone can apply for a protection order on behalf of a family member (such as a child) whom they believe is at risk of family violence. A protection order can say your partner must stay away from you and your children. It can also restrict how your partner communicates with you. | ||
If your partner breaks this order, they can face criminal charges. For more on protection orders and other ways to stay safe, [[Family Violence|see our information on family violence]]. | If your partner breaks this order, they can face criminal charges. For more on protection orders and other ways to stay safe, [[Family Violence (No. 155)|see our information on family violence]]. | ||
{| class="wikitable" | |||
|align="left"|'''Self-help guide''' | |||
Legal Aid BC’s Family Law in BC website has a [https://family.legalaid.bc.ca/abuse-family-violence/protecting-yourself-your-family/apply-family-law-protection-order#0 free step-by-step guide] for applying for a protection order in Provincial Court. | |||
|} | |||
==Who can help== | ==Who can help== | ||
| Line 162: | Line 171: | ||
* [https://wiki.clicklaw.bc.ca/index.php/Children_in_Family_Law_Matters Visit website] | * [https://wiki.clicklaw.bc.ca/index.php/Children_in_Family_Law_Matters Visit website] | ||
Legal Aid BC’s '''Family Law website''' has information and self-help guides on legal issues affecting children. | Legal Aid BC’s '''Family Law in BC website''' has information and self-help guides on legal issues affecting children. | ||
* [https://familylaw.lss.bc.ca/children Visit website] | * [https://familylaw.lss.bc.ca/children Visit website] | ||
