Grandparents and Extended Family Members: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = relationships}}
{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
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{{Clicklawbadge
| resourcetype = <br/>a resource for<br/>
| link        = [https://www.parentsupportbc.ca/grandparent-raising-grandchildren-kinship-care-support-circles-by-location/ Grandparents raising <br/> grandchildren]
}}People other than a child's parents can have relationships with a child that fall under the family law umbrella. Typically, these people are a child's extended family members &mdash; grandparents, aunts, uncles, and so forth &mdash; although there's no reason why someone else, like an unrelated long-term caregiver, a family friend, or a neighbour, couldn't also have an important interest in parenting a child or in having time with a child on a regular basis.


People other than a child's biological parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is primarily directed to grandparents, although it applies equally to other people who are not the parent of a child.
This section talks about the claims a child's grandparents, extended family members and other adults can make about the guardianship of a child, parenting a child, having time with a child, and child support.


Grandparents and other people who are not parents normally become involved in court proceedings dealing with children, as parties in their own right, in only a few situations:
==Introduction==


#where one or both of the guardians of the children are dead;
Grandparents, extended family members and other adults who are not parents normally get involved in legal disputes about children in only a few situations, usually where:
#where one or both of the guardians have abandoned the children or the care of the children;
#where there are serious concerns about the fitness of the guardians to care for the children; or,
#where they are being denied time or involvement with the children.


Their concerns are usually about:
*one or all of the guardians of a child have died,
*one or all of a child's guardians have abandoned a child,
*there are serious concerns about the ability of guardians to care for their child, or
*they are being refused time with a child, or involvement in the child's life.


#getting contact with the children;
Their concerns are about either supervising or managing the parenting of a child, or setting up a schedule that will let them see a child on a regular basis.
#supervising the parenting of the children when they are with a guardian; or,
#being appointed as a guardian of the children.


No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the British Columbia Supreme Court, ''M.(D.W.) v. M.(J.S.)'', the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded to the custodial parent and that parent's ability to determine the child's best interests."
Two laws might apply to grandparents, extended family members and others who aren't parents and who want to be involved in parenting a child or getting time with a child.  


===Legislation===
*'''The federal ''Divorce Act'':''' This law applies if the child's parents are married and are already involved in a court proceeding under the ''[[Divorce Act]]''. However, to make an application under the ''Divorce Act'', you have to get the court's permission first.
*'''The provincial ''Family Law Act'':''' This applies whether the child's parents are married to each other or not. It also applies whether or not the parents are already involved in a court proceeding under the ''[[Family Law Act]]''. You do not need the court's permission to make an application under the ''Family Law Act''.
 
Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law applies to your situation.
 
===The ''Divorce Act''===
 
Under section 16.1(1)(b) of the ''[[Divorce Act]]'', someone who isn't a ''spouse'' may ask the court for a ''parenting order''. A "parenting order" is an order about ''parenting time'' or ''decision-making responsibility'' in respect of a child. "Parenting time" usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. "Decision-making responsibility" means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and decision-making responsibility are discussed in a lot more detail in the section [[Divorce Act Basics|''Divorce Act'' Basics]] and in the chapter [[Children and Parenting after Separation]].)
 
Under section 16.5(1) of the ''Divorce Act'', someone who isn't a ''spouse'' may also ask the court for a ''contact order''. A "contact order" is an order about the time that someone who isn't a parent has with a child. This sounds the same as an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions, and the right to get information about the child's wellbeing, including about their health and education. Someone with contact, on the other hand, has none of these rights. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the chapter [[Children and Parenting after Separation]].)


Two laws might apply to non-parents seeking guardianship of or contact with children. Where the children's guardians are already in court about the children, that will be either the federal ''Divorce Act'', if the guardians are or were married, or the provincial ''Family Law Act''. If the guardians are not involved in a court proceeding between each other, it will be the ''Family Law Act''.
Because we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses, or formerly married spouses, before someone who isn't a spouse can step in and ask for, or ask to change, a parenting order or a contact order. There must be an existing proceeding between spouses in which the person's application can be made.


Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.
===The ''Family Law Act''===


====The ''Divorce Act''====
The ''[[Family Law Act]]'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians and may have ''contact'' with a child.


According to s. 16(1) of the ''Divorce Act'', the court can make an order for ''access'' or ''custody'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.
In most cases, a child's parents are the child's guardians, which means that normally only a child's parents are entitled to have parental responsibilities and parenting time with the child. However, someone who isn't a parent can ask the court to be appointed as a guardian of a child under section 51 of the ''Family Law Act''. Someone who is a guardian of a child may ask the court for an order about the child's ''parenting arrangements'' under section 45(1) of the act. An order about a child's "parenting arrangements" is an order about ''parenting time'' or ''parental responsibilities'' in respect of a child. "Parenting time" usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. "Parental responsibilities" means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and parental responsibilities are discussed in a lot more detail in the section [[Family Law Act Basics|''Family Law Act'' Basics]] and in the chapter [[Children and Parenting after Separation]].)


Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the ''Divorce Act'', since the act only applies to disputes between married spouses.
Under section 59 of the ''Family Law Act'', someone who isn't a ''guardian'' may ask the court for a ''contact order''. A "contact order" is an order about the time that someone who isn't a guardian has with a child. This sounds just like an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions. Someone with contact, on the other hand, does not have this right. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the chapter [[Children and Parenting after Separation]].)


====The ''Family Law Act''====
Under section 149(1) and 149(2)(b) of the act, any person may ask the court for an order that a child's parent, stepparent or guardian pay ''child support'' for the benefit of a child to a "designated person," normally the person the child lives with the most. (Child support is discussed in a lot more detail in the [[Child Support]] chapter.)


The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and have ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.
If the child's guardians are already in court, a child's grandparents, extended family members and others who aren't parents can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. They can then ask for orders about guardianship of the child, the child's parenting arrangements, contact with the child or child support for the child.


Any person can apply to be appointed as the guardian of a child under s. 51 of the act, however these applications can be difficult and time-consuming and the court must be satisfied that the appointment is in the best interests of the child. People applying to become the guardian of a child, an ''Applicant'', must fill out a special affidavit required by the Provincial Court Family Rules and the Supreme Court Family Rules that talks about:
If the guardians are not already in court, a child's grandparents, extended family members and others can start a court proceeding against the child's parents or guardians and ask for orders about guardianship, parenting arrangements, contact with the child or child support.


#the Applicant's relationship to the child;
===Orders and agreements===
#the other children presently in the care of the Applicant;
#any history of family violence that might affect the child; and,
#any previous civil or criminal court proceedings related to the best interests of the child.


Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development (MCFD).
This section talks about the orders available to children's grandparents, extended family members and others who aren't parents, and is written on the assumption that someone who is interested in securing a right to some sort of involvement in a child's life will be going to court. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely just give their permission. In cases like that, there's no reason at all why the child's parents or guardians and the grandparent, extended family member or other person couldn't just make a written agreement resolving the issue instead of going to court.


Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.
A family law agreement is a contract between two or more people. Agreements on family law issues are enforceable by the courts, just like any other kind of contract. The sort of agreement a child's grandparent, extended family member or other person who isn't a parent would want to sign might:


===Custody and Guardianship===
*authorize the grandparent, extended family member or other person to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'',
*provide the grandparent, extended family member or other person with specific rights of contact with the child, under section 58(1) of the act, or
*require one or more parents or guardians to provide child support to the grandparent, extended family member or other person, under section 147(1) of the ''Act'', if the child is living with the grandparent, extended family member or other person.


There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, ''J.R. v. D.W.'':
It's important to know that a child's guardians cannot make an agreement appointing anyone other than a parent as a guardian of the child. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order under section 51 of the ''Family Law Act''. You'll find details about this further on in this section.


<blockquote>"Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved."</blockquote>
==Rights and responsibilities of grandparents and others==


The Supreme Court of Canada emphasized the children's best interests a bit more strongly in ''Racine v. Woods'', a case from 1983:
A child's grandparents, extended family members and other people who aren't the child's parents can ask for orders about parenting a child and time with a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order under the federal ''[[Divorce Act]]'', the child's grandparents, extended family members and others ''must'' make any applications about parenting the child or time with the child under that legislation, and they must get the court's permission first.


<blockquote>"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."</blockquote>
Where a child winds up living mostly with a grandparent, extended family member or another person, they can ask for an order that the child's parents, stepparents or guardians pay child support to them under the ''Family Law Act''.


Nevertheless, grandparents and other non-parents who are seeking custody or guardianship of a child will face a difficult challenge, especially where both guardians are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.
A child's grandparents, extended family members and other people do not have the right to ask a child's parents or guardians to pay spousal support to them. They also don't have the right to ask for orders about the division of property or debt with a child's parents or guardians.  


Factors that the courts have taken into consideration in awarding custody to a non-parent have included:
===Parenting children===


#ill-treatment, mistreatment and neglect of the children;
Orders about parenting a child can be made under either the ''[[Divorce Act]]'' or the ''[[Family Law Act]]''. The ''Divorce Act'' only applies when the child's parents are married and are divorced or in the process of divorcing. The ''Family Law Act'' applies regardless of the relationship between the child's parents.
#chronic drug or alcohol use, a partying type of lifestyle;
#instability of the guardians' lifestyle and living situation;
#abandonment of the children by the guardians, or an existing status quo in which the non-parent is primarily responsible for the care of the children; and,
#poor parenting skills on the part of the guardian.


Grandparents and other non-parents shouldn't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded custody of their grandchildren. It is possible to succeed on a custody application, although the chances of success depend wholly on the circumstances of each case.
====The ''Divorce Act''====


===Access and Contact===
Under section 16.1(1) of the ''[[Divorce Act]]'', the court may make orders about ''parenting time'' and ''decision-making responsibility'' with respect to a child. Under section 16.5(1), the court may make orders that a person have ''contact'' with a child.


There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody, and the court is being asked to challenge the parent or guardian's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent or guardian.
When a grandparent, extended family member or another person who is not a parent asks the court for an order about a child, they must show why it is in the best interests of the child for the court to make that order. The court will usually extend a great deal of respect to the wishes of the child's parents in considering applications like these, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children and Parenting After Separation]].


Grandparents and other non-parents do not have a presumptive right of access to or contact with children under either the ''Divorce Act'' or the ''Family Law Act'', but they can ask the court to make an order giving them access to their grandchildren. The 1993 Supreme Court of British Columbia case of ''Chapman v. Chapman'' sets out the general rules governing applications for access or contact by non-parents:
=====Parenting orders and "standing in the place of a parent"=====


*The burden is on the non-parent to show that the proposed access or contact is in the child's best interests.
Section 16.1 of the ''[[Divorce Act]]'' says this:
*The child's guardians have a significant role and the court should be slow to interfere with the guardians' discretion, and should only do so when satisfied that the access or contact is in the child's best interests.
*It is not in the child's best interests to be placed in circumstances of conflict between guardians and non-parents, and access or contact should not be given where it would only escalate the conflict between the parties.
*Non-parents may also have to demonstrate that they offer some positive benefit to the child before access or contact will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access or contact that the guardians will agree to.


Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occur during the time that their child has the grandchild. In other words, maternal grandparents will usually have access, if the court makes the order at all, during the mother's time with the child. Where only one guardian is in the picture, the court will usually determine what access the grandparents ought to have independently of the interests of the guardian.
<blockquote><tt>(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by</tt></blockquote>
<blockquote><blockquote><tt>(a) either or both spouses; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent</tt></blockquote></blockquote>


As with applications for custody or guardianship, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this discussion. There are numerous cases in which grandparents have been awarded time with their grandchildren; it ''is'' possible to succeed on an application for access or contact.
The key here is that a person who isn't a spouse must ''stand in the place of a parent'', or ''intend'' to stand in the place of a parent, to a child before they can ask for a parenting order. (That phrase, "standing in the place of a parent," comes from a Latin legal term you've probably heard before, standing ''in loco parentis''. They mean the same thing.) If the person who wants the parenting order doesn't stand in the place of a parent, or intend to stand in the place of a parent, to the child who would be the subject of the parenting order, they can't ask for the order.


===Financial Support===
"Standing in the place of a parent" means that a person has assumed the responsibilities of a parent to a child. They live with the child, they provide emotional and financial support for the child, they make important decisions for the child, and they mentor and discipline the child. In short, they have taken responsibility for raising a child. Under the old law, whether someone stood in the place of a parent was really important because it meant that they had all of the rights and responsibilities a parent would have, as well as the obligation to pay child support for the benefit of the child. That's still important under today's ''Divorce Act'', as someone who marries a parent can be required to pay child support if they "stand in the place of a parent" to their stepchild.


When a non-parent obtains custody of a child or an order that the child live mostly with him or her, that person can apply for child support to be paid by the guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the ''Family Law Act''; they cannot apply under the ''Divorce Act''.
The big case on whether someone stands in the place of a parent is a 1999 decision of the Supreme Court of Canada called ''[http://canlii.ca/t/1fqmm Chartier v Chartier]''. In this case, the court said that:


Grandparents are also entitled to ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.
<blockquote>"The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent."</blockquote>


This is important to know because section 16.1(3) of the ''Divorce Act'' says that:


<blockquote><tt>(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.</tt></blockquote>


In other words, a person who isn't a spouse but stands in the place of a parent must get permission from the court under section 16.1(3) before they can ask for a parenting order under section 16.1(1)(b), and an important step in getting permission will be proving that the person stands in the place of a parent to the child or intends to stand in the place of a parent.


==OLD==
When a parenting order already exists, someone who isn't a spouse but stands in the place of a parent can also ask the court to change, or ''vary'', the parenting order under section 17(1)(b)(ii) of the ''Divorce Act''. However, just like applications for new parenting orders, someone who isn't a spouse and wants to apply to vary a parenting order must first get permission from the court under section 17(2).


Your relationship may have been brief, but if you and your boyfriend or girlfriend have had a child together you are both responsible for meeting the child's financial needs and you both have the right to be involved in raising the child. You may not have any other rights and obligations towards each other, but you may have the right to participate in parenting the child and you do have the obligation to pay child support.
Finally, remember that because we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses, or formerly married spouses, before someone who isn't a spouse can step in and ask for, or ask to change, a parenting order. There must be an existing proceeding between spouses in which the person's application can be made.


This page is for unmarried people who have had a child but who never lived together. It talks about the legal issues unmarried parents may have to deal with and those they don't, and discusses the two most common issues couples like this have to deal with, child support and the care of children.
=====Contact orders=====


==Introduction==
Someone who isn't a "spouse" may ask the court for an order that they have contact with a child under section 16.5(1) of the ''[[Divorce Act]]''. While the person who wants the order doesn't need to pass that threshold test of "standing in the place of a parent" or "intending to stand in the place of a parent" that applications about parenting orders require, the person who wants the contact order still needs to first get permission from the court under section 16.5(3) of the act before applying for contact.
 
And just like applications about parenting orders, there must be an existing court proceeding between married spouses, or formerly married spouses, before someone who isn't a spouse can ask for a contact order. There must be an existing proceeding between spouses in which the person's application can be made.


The provincial ''Family Law Act'' applies to couples that are or were in long-term cohabiting relationships and to couples who weren't in long relationships but have had a child together. Almost all of the orders the act talks about aren't available to couples who aren't married and don't qualify as unmarried spouses. As a result, parents in short relationships will not be entitled to claim spousal support and are excluded from the parts of the act that deal with family property and family debt.
====The ''Family Law Act''====


The federal ''Divorce Act'' only applies to people who are or were married to each other; it doesn't apply to unmarried couples, including couples who qualify as unmarried spouses.
Under section 45(1) of the ''[[Family Law Act]]'', the court may make orders about ''parenting time'' and ''parental responsibilities'' with respect to a child. Under section 59, the court may make orders that a person have ''contact'' with a child.


===Relief Available to Unmarried Couples===
When a grandparent, extended family member or another person who is not a parent asks the court for an order about a child, they must show why it is in the best interests of the child for the court to make that order. The court will usually extend a great deal of respect to the wishes of the child's parents and guardians in considering applications like these, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children and Parenting After Separation]].


Couples who neither married nor lived together will have certain rights and obligations toward one another if they have a child. One or both of them will also be entitled to certain government benefits as a result of being parents.
=====Guardianship, parental responsibilities and parenting time=====


====Children====
Under section 40(1) of the ''[[Family Law Act]]'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child but do not have the right to participate in making decisions about parenting the child or the right to get information about the child's wellbeing from the important people involved in the child's life, such as doctors, teachers, counsellors, and so on.


There is no minimum length-of-relationship requirement for any claim involving children. A parent is a parent, regardless of the nature of the relationship which produced the child.
Under section 39 of the act, the people who are presumed to be the guardians of a child are:


A parent may apply for all of the relief available under the ''Family Law Act'' that concerns children, from child support to guardianship to the various restraining orders that are available to protect a child from harm. Issues about children are discussed at greater length further on in this page.
*the child's parents, as long as they lived together after the child was born,
*a person who is a parent of a child under an assisted reproduction agreement, and
*a parent who "regularly cares" for the child.


====Property====
A child's grandparents, extended family members and other people who are not parents are not presumed to be the guardian of a child. A grandparent, extended family member or another person may become the guardian of a child by:


In a short relationship, each party will generally be entitled keep whatever he or she brought into the relationship. In the case of jointly owned assets, assets which both parties own and are registered in the names of both parties, like a house or a car, there is a legal presumption that each party has an equal interest in such assets, whether the parties contributed equally to their purchase or not.
*applying for an order appointing them as a guardian of the child under section 51 of the act,
*being appointed by a guardian as the ''standby guardian'' of the child under section 55, or
*being appointed a guardian of the child upon the death of a guardian, as a ''testamentary guardian'' of the child, under section 53.


====Government Benefits====
Since an appointment making a person a standby guardian or a testamentary guardian of a child can take some time to come into effect, a grandparent, extended family member or another person who feels the need to step in sooner rather than later will need to apply to be appointed as a guardian of the child under section 51 of the ''Family Law Act''.


The most important thing to know about government benefits is that most federal legislation defines a ''spouse'' as someone who has been in a cohabiting relationship for at least one year, as opposed to British Columbia's legislation which generally requires a two-year cohabiting relationship to qualify. As a result, someone in a relationship of at least one year may qualify for any federal benefits that depend on a spousal relationship although they probably won't qualify for provincial benefits. People in a relationship of less than one year will not usually qualify for any benefits at all.
Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/b8rn Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:


Benefits relating to children, like the BC Family Bonus, the Canada Child Tax Benefit, the National Child Benefit Supplement and the Universal Child Care Benefit, are available to anyone who is a parent, regardless of the nature of that person's relationship with the other parent. The website of the Canada Revenue Agency has a lot of information about federal and provincial benefits.
*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.


===Relief Not Available to Unmarried Couples===
Applicants must also get, and attach to their affidavit, the following other documents:


A couple who have a child but did not live together, or who lived together for less than two years and did not have a child, cannot ask for orders under the ''Family Law Act'' about spousal support or about the division of property and debt.
*a criminal records check,
*a child protection records check from the Ministry for Children and Family Development, and
*a check of provincial registry records for any family law protection orders about them.


====Spousal Support====
Someone who is applying to be appointed as the guardian of a child may ask for orders about parental responsibilities and parenting time in the same application.


The ''Family Law Act'' defines a "spouse" for the purposes of claims for support as someone who has lived in a marriage-like relationship with someone else for at least two years or for less than two years if the couple has had a child together. As only spouses are eligible for spousal support, people who do not meet these criteria cannot apply for spousal support.
=====Temporary authorizations=====


====Property====
Under section 43(2) of the ''[[Family Law Act]]'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's grandparent, extended family member or another person who is not a parent of the child. These authorizations must be made in writing, and should say exactly what it is that the authorized person can do on behalf of the child and which parental responsibilities they may exercise.


The ''Family Law Act'' defines a "spouse" for the purposes of claims about property and debt as someone who has lived in a marriage-like relationship with someone else for at least two years. Only spouses may ask for orders about the division of property and debt.
The parental responsibilities that someone can exercise under a written authorization are:


==Child Support==
*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
*applying for a passport, licence, or permit for the child,
*giving, refusing, or withdrawing consent for the child, if consent is required,
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
*requesting and receiving from third parties health, education, or other information respecting the child.


Child support is payable by anyone who is the parent of a child, regardless of the brevity of the relationship which produced the child. The ''Family Law Act'' says, at s. 147, that each parent has a duty to provide support for his or her child.
Authorizations like these are mostly used when: a child needs to go somewhere else to attend school; a guardian will not be able to look after a child during a period of illness; and, a guardian will not be able to look after a child while recovering from a surgery or another difficult treatment.


According to s. 150(1) of the act, child support is to be paid in the amount determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to unmarried parents, including:
=====Contact orders=====


#the tables that are used to calculate the amount of child support payable;
Any person can apply for contact with a child under section 59 of the ''[[Family Law Act]]''. The court must be satisfied that the contact sought is in the best interests of the child. People who are applying for contact don't need to get a criminal records check, a child protection records check or a check of provincial registry records for family law protection orders.
#the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
#the rules about the payment of children's special expenses.


Nothing in the ''Family Law Act'' or the Child Support Guidelines allows a parent to escape paying support through some quirk in the circumstances under which the child was conceived or whether the pregnancy was planned or not. The only question which may be left open is whether or not the person being asked to pay child support is the parent of the child for whose benefit support is sought. If that's an issue, a paternity test can always be taken.
===Child Support===


Additional information about child support and the Guidelines can be found in the Child Support chapter of this wiki. Additional information about paternity and paternity testing can be found in the ____ page.
====The ''Divorce Act''====


==The Care of Children==
Under section 15.1(1) of the ''[[Divorce Act]]'', only married spouses may apply for child support orders under the act. As a result, a child's grandparent, extended family member or another person who is not a parent of the child yet has parenting time with a child under a ''Divorce Act'' order must pursue child support under the ''[[Family Law Act]]'' if child support is needed. You can't apply for child support under the ''Divorce Act''.


Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' in relation to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.
====The ''Family Law Act''====


Under s. 39, the people who are presumed to be the guardians of a child are:
The ''[[Family Law Act]]'' says, at sections 146 and 147(1), that every parent, stepparent and guardian has a duty to provide support for their child, as long as the child:


#the child's parents, as long as they lived together;
*is a "child" as defined by section 146 of the act,
#a person who is a parent of a child under an assisted reproduction agreement; and,
*hasn't become a "spouse," and
#a parent who "regularly cares" for the child.
*hasn't withdrawn from the care of their parents or guardians under section 147(1).  


In other words, if a couple had had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless he or she "regularly cares" for the child.
Under section 149 of the act, the court can make an order requiring a parent to pay child support to "a designated person" on the application of a person "acting on behalf of the child:"


A parent who isn't a guardian can become a guardian if the child's other guardians, who may be just the other parent, agree that the parent should be a guardian. If the parents can't agree on this, then the parent who doesn't live with the child has three choices. He or she:
<blockquote><tt>(1) ... on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child ...</tt></blockquote></blockquote>


#must settle for having contact with the child and not being able to participate in parenting the child;
As long as the child lives mostly with their grandparent, extended family member or another person who is not a parent of the child, the grandparent, extended family member or other person can ask for an order for child support against one, two, or more of the child's parents and guardians.
#must prove that he or she "regularly cares" for the child, in order to be recognized as a guardian of the child who is entitled to participate in parenting the child; or,
#must apply to be appointed as the guardian of a child under s. 51 of the ''Family Law Act''.


Applications for appointment as guardian are difficult as the person who is making the application must provide a special kind of affidavit that talks about the children who are and have been in the person's care, any civil or criminal court proceedings that might impact on the safety of a child, and any history of involvement with the Ministry for Children and Family Development. The person must also provide recent MCFD and police records checks.
According to section 150(1) of the ''Family Law Act'', when an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, the whole of the Guidelines apply when a child's grandparent, extended family member or other person is asking for child support, just as they apply when a parent or a guardian is asking for child support, including:


==Further Reading in this Chapter==
*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special or extraordinary expenses.


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
Child support is discussed in a lot more detail in the [[Child Support]] chapter.


==Page Resources and Links==
==Resources and links==


===Legislation===
===Legislation===


* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* ''[https://canlii.ca/t/8q3k Family Law Act]''
FLA
* ''[https://canlii.ca/t/551f9  Divorce Act]''
*[https://canlii.ca/t/b8rn Provincial Court Family Rules]
*[https://canlii.ca/t/8mcr Supreme Court Family Rules]
* [https://canlii.ca/t/80mh Child Support Guidelines]


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* [https://www.parentsupportbc.ca/services/support-line/ Kinship Care Help Line] (formerly Grandparents Raising Grandchildren Support Line) from the Parent Support Services Society of BC
CRA webpage on child benefits
* [https://www.justice.gc.ca/eng/fl-df/child-enfant/cst-orpe.html Child Support Table Look-up] from the Department of Justice
*[https://bit.ly/3AdKX0u Extended Family Program] (Temporary Out-of-Care Arrangements) from the BC Ministry of Children and Family Development
*[https://aboriginal.legalaid.bc.ca/child-family-rights/extended-family-program Extended Family Program] (Aboriginal families) from Legal Aid BC
*[https://family.legalaid.bc.ca/children/parenting-guardianship Parenting and Guardianship] from Legal Aid BC
** see section on "Contact with a Child"
*[https://dialalaw.peopleslawschool.ca/custody-guardianship-parenting/ Guardianship, Parenting Arrangements, and Contact]from Dial-a-Law by the People's Law School
*[https://www.bcli.org/project/appointing-guardian-and-standby-guardianship/ Appointing a Guardian and Standby Guardianship] from the British Columbia Law Institute
 
===Resources===
 
* [https://perma.cc/35ZG-VHGP "Grandparents Raising Grandchildren: A Legal Guide"] (2014, no longer updated) from Parent Support Services Society of BC


{{REVIEWED | reviewer = [[JP Boyd]], March 25, 2021}}


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[[Category:JP Boyd on Family Law]]

Latest revision as of 23:29, 7 August 2024

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Family Relationships
 · Married Spouses

 · Unmarried Spouses

 · Parents

 · Polyamorous Relationships

 · Grandparents and Extended Family

 · Adoption

 · Assisted Reproduction
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
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Page Editor(s)
Since 2020: JP Boyd, KC
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Read: Past contributors
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Grandparents raising
grandchildren.

People other than a child's parents can have relationships with a child that fall under the family law umbrella. Typically, these people are a child's extended family members — grandparents, aunts, uncles, and so forth — although there's no reason why someone else, like an unrelated long-term caregiver, a family friend, or a neighbour, couldn't also have an important interest in parenting a child or in having time with a child on a regular basis.

This section talks about the claims a child's grandparents, extended family members and other adults can make about the guardianship of a child, parenting a child, having time with a child, and child support.

Introduction

Grandparents, extended family members and other adults who are not parents normally get involved in legal disputes about children in only a few situations, usually where:

  • one or all of the guardians of a child have died,
  • one or all of a child's guardians have abandoned a child,
  • there are serious concerns about the ability of guardians to care for their child, or
  • they are being refused time with a child, or involvement in the child's life.

Their concerns are about either supervising or managing the parenting of a child, or setting up a schedule that will let them see a child on a regular basis.

Two laws might apply to grandparents, extended family members and others who aren't parents and who want to be involved in parenting a child or getting time with a child.

  • The federal Divorce Act: This law applies if the child's parents are married and are already involved in a court proceeding under the Divorce Act. However, to make an application under the Divorce Act, you have to get the court's permission first.
  • The provincial Family Law Act: This applies whether the child's parents are married to each other or not. It also applies whether or not the parents are already involved in a court proceeding under the Family Law Act. You do not need the court's permission to make an application under the Family Law Act.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law applies to your situation.

The Divorce Act

Under section 16.1(1)(b) of the Divorce Act, someone who isn't a spouse may ask the court for a parenting order. A "parenting order" is an order about parenting time or decision-making responsibility in respect of a child. "Parenting time" usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. "Decision-making responsibility" means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and decision-making responsibility are discussed in a lot more detail in the section Divorce Act Basics and in the chapter Children and Parenting after Separation.)

Under section 16.5(1) of the Divorce Act, someone who isn't a spouse may also ask the court for a contact order. A "contact order" is an order about the time that someone who isn't a parent has with a child. This sounds the same as an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions, and the right to get information about the child's wellbeing, including about their health and education. Someone with contact, on the other hand, has none of these rights. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the chapter Children and Parenting after Separation.)

Because we're talking about the Divorce Act, a court proceeding must have already started between married spouses, or formerly married spouses, before someone who isn't a spouse can step in and ask for, or ask to change, a parenting order or a contact order. There must be an existing proceeding between spouses in which the person's application can be made.

The Family Law Act

The Family Law Act talks about guardians who have parental responsibilities and parenting time with children, and about people who are not guardians and may have contact with a child.

In most cases, a child's parents are the child's guardians, which means that normally only a child's parents are entitled to have parental responsibilities and parenting time with the child. However, someone who isn't a parent can ask the court to be appointed as a guardian of a child under section 51 of the Family Law Act. Someone who is a guardian of a child may ask the court for an order about the child's parenting arrangements under section 45(1) of the act. An order about a child's "parenting arrangements" is an order about parenting time or parental responsibilities in respect of a child. "Parenting time" usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. "Parental responsibilities" means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and parental responsibilities are discussed in a lot more detail in the section Family Law Act Basics and in the chapter Children and Parenting after Separation.)

Under section 59 of the Family Law Act, someone who isn't a guardian may ask the court for a contact order. A "contact order" is an order about the time that someone who isn't a guardian has with a child. This sounds just like an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions. Someone with contact, on the other hand, does not have this right. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the chapter Children and Parenting after Separation.)

Under section 149(1) and 149(2)(b) of the act, any person may ask the court for an order that a child's parent, stepparent or guardian pay child support for the benefit of a child to a "designated person," normally the person the child lives with the most. (Child support is discussed in a lot more detail in the Child Support chapter.)

If the child's guardians are already in court, a child's grandparents, extended family members and others who aren't parents can start a court proceeding and ask that the new proceeding be joined to the court proceeding between the guardians. They can then ask for orders about guardianship of the child, the child's parenting arrangements, contact with the child or child support for the child.

If the guardians are not already in court, a child's grandparents, extended family members and others can start a court proceeding against the child's parents or guardians and ask for orders about guardianship, parenting arrangements, contact with the child or child support.

Orders and agreements

This section talks about the orders available to children's grandparents, extended family members and others who aren't parents, and is written on the assumption that someone who is interested in securing a right to some sort of involvement in a child's life will be going to court. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely just give their permission. In cases like that, there's no reason at all why the child's parents or guardians and the grandparent, extended family member or other person couldn't just make a written agreement resolving the issue instead of going to court.

A family law agreement is a contract between two or more people. Agreements on family law issues are enforceable by the courts, just like any other kind of contract. The sort of agreement a child's grandparent, extended family member or other person who isn't a parent would want to sign might:

  • authorize the grandparent, extended family member or other person to exercise certain parental responsibilities in relation to the child, under section 43(2) of the Family Law Act,
  • provide the grandparent, extended family member or other person with specific rights of contact with the child, under section 58(1) of the act, or
  • require one or more parents or guardians to provide child support to the grandparent, extended family member or other person, under section 147(1) of the Act, if the child is living with the grandparent, extended family member or other person.

It's important to know that a child's guardians cannot make an agreement appointing anyone other than a parent as a guardian of the child. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order under section 51 of the Family Law Act. You'll find details about this further on in this section.

Rights and responsibilities of grandparents and others

A child's grandparents, extended family members and other people who aren't the child's parents can ask for orders about parenting a child and time with a child under the provincial Family Law Act. If the child's parents are married and have an order under the federal Divorce Act, the child's grandparents, extended family members and others must make any applications about parenting the child or time with the child under that legislation, and they must get the court's permission first.

Where a child winds up living mostly with a grandparent, extended family member or another person, they can ask for an order that the child's parents, stepparents or guardians pay child support to them under the Family Law Act.

A child's grandparents, extended family members and other people do not have the right to ask a child's parents or guardians to pay spousal support to them. They also don't have the right to ask for orders about the division of property or debt with a child's parents or guardians.

Parenting children

Orders about parenting a child can be made under either the Divorce Act or the Family Law Act. The Divorce Act only applies when the child's parents are married and are divorced or in the process of divorcing. The Family Law Act applies regardless of the relationship between the child's parents.

The Divorce Act

Under section 16.1(1) of the Divorce Act, the court may make orders about parenting time and decision-making responsibility with respect to a child. Under section 16.5(1), the court may make orders that a person have contact with a child.

When a grandparent, extended family member or another person who is not a parent asks the court for an order about a child, they must show why it is in the best interests of the child for the court to make that order. The court will usually extend a great deal of respect to the wishes of the child's parents in considering applications like these, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the chapter on Children and Parenting After Separation.

Parenting orders and "standing in the place of a parent"

Section 16.1 of the Divorce Act says this:

(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent

The key here is that a person who isn't a spouse must stand in the place of a parent, or intend to stand in the place of a parent, to a child before they can ask for a parenting order. (That phrase, "standing in the place of a parent," comes from a Latin legal term you've probably heard before, standing in loco parentis. They mean the same thing.) If the person who wants the parenting order doesn't stand in the place of a parent, or intend to stand in the place of a parent, to the child who would be the subject of the parenting order, they can't ask for the order.

"Standing in the place of a parent" means that a person has assumed the responsibilities of a parent to a child. They live with the child, they provide emotional and financial support for the child, they make important decisions for the child, and they mentor and discipline the child. In short, they have taken responsibility for raising a child. Under the old law, whether someone stood in the place of a parent was really important because it meant that they had all of the rights and responsibilities a parent would have, as well as the obligation to pay child support for the benefit of the child. That's still important under today's Divorce Act, as someone who marries a parent can be required to pay child support if they "stand in the place of a parent" to their stepchild.

The big case on whether someone stands in the place of a parent is a 1999 decision of the Supreme Court of Canada called Chartier v Chartier. In this case, the court said that:

"The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent."

This is important to know because section 16.1(3) of the Divorce Act says that:

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

In other words, a person who isn't a spouse but stands in the place of a parent must get permission from the court under section 16.1(3) before they can ask for a parenting order under section 16.1(1)(b), and an important step in getting permission will be proving that the person stands in the place of a parent to the child or intends to stand in the place of a parent.

When a parenting order already exists, someone who isn't a spouse but stands in the place of a parent can also ask the court to change, or vary, the parenting order under section 17(1)(b)(ii) of the Divorce Act. However, just like applications for new parenting orders, someone who isn't a spouse and wants to apply to vary a parenting order must first get permission from the court under section 17(2).

Finally, remember that because we're talking about the Divorce Act, a court proceeding must have already started between married spouses, or formerly married spouses, before someone who isn't a spouse can step in and ask for, or ask to change, a parenting order. There must be an existing proceeding between spouses in which the person's application can be made.

Contact orders

Someone who isn't a "spouse" may ask the court for an order that they have contact with a child under section 16.5(1) of the Divorce Act. While the person who wants the order doesn't need to pass that threshold test of "standing in the place of a parent" or "intending to stand in the place of a parent" that applications about parenting orders require, the person who wants the contact order still needs to first get permission from the court under section 16.5(3) of the act before applying for contact.

And just like applications about parenting orders, there must be an existing court proceeding between married spouses, or formerly married spouses, before someone who isn't a spouse can ask for a contact order. There must be an existing proceeding between spouses in which the person's application can be made.

The Family Law Act

Under section 45(1) of the Family Law Act, the court may make orders about parenting time and parental responsibilities with respect to a child. Under section 59, the court may make orders that a person have contact with a child.

When a grandparent, extended family member or another person who is not a parent asks the court for an order about a child, they must show why it is in the best interests of the child for the court to make that order. The court will usually extend a great deal of respect to the wishes of the child's parents and guardians in considering applications like these, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the chapter on Children and Parenting After Separation.

Guardianship, parental responsibilities and parenting time

Under section 40(1) of the Family Law Act, only people who are the guardians of a child have parental responsibilities and parenting time with respect to that child. People who are not the guardians of a child may have contact with the child but do not have the right to participate in making decisions about parenting the child or the right to get information about the child's wellbeing from the important people involved in the child's life, such as doctors, teachers, counsellors, and so on.

Under section 39 of the act, the people who are presumed to be the guardians of a child are:

  • the child's parents, as long as they lived together after the child was born,
  • a person who is a parent of a child under an assisted reproduction agreement, and
  • a parent who "regularly cares" for the child.

A child's grandparents, extended family members and other people who are not parents are not presumed to be the guardian of a child. A grandparent, extended family member or another person may become the guardian of a child by:

  • applying for an order appointing them as a guardian of the child under section 51 of the act,
  • being appointed by a guardian as the standby guardian of the child under section 55, or
  • being appointed a guardian of the child upon the death of a guardian, as a testamentary guardian of the child, under section 53.

Since an appointment making a person a standby guardian or a testamentary guardian of a child can take some time to come into effect, a grandparent, extended family member or another person who feels the need to step in sooner rather than later will need to apply to be appointed as a guardian of the child under section 51 of the Family Law Act.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the applicant, must fill out a special affidavit required by the Provincial Court Family Rules and the Supreme Court Family Rules that talks about:

  • the applicant's relationship to the child,
  • the other children currently in the care of the applicant,
  • any history of family violence that might affect the child, and
  • any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get, and attach to their affidavit, the following other documents:

  • a criminal records check,
  • a child protection records check from the Ministry for Children and Family Development, and
  • a check of provincial registry records for any family law protection orders about them.

Someone who is applying to be appointed as the guardian of a child may ask for orders about parental responsibilities and parenting time in the same application.

Temporary authorizations

Under section 43(2) of the Family Law Act, a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's grandparent, extended family member or another person who is not a parent of the child. These authorizations must be made in writing, and should say exactly what it is that the authorized person can do on behalf of the child and which parental responsibilities they may exercise.

The parental responsibilities that someone can exercise under a written authorization are:

  • making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
  • making decisions about whom the child will live with and associate with,
  • making decisions about the child's education and participation in extracurricular activities,
  • giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
  • applying for a passport, licence, or permit for the child,
  • giving, refusing, or withdrawing consent for the child, if consent is required,
  • receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
  • requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when: a child needs to go somewhere else to attend school; a guardian will not be able to look after a child during a period of illness; and, a guardian will not be able to look after a child while recovering from a surgery or another difficult treatment.

Contact orders

Any person can apply for contact with a child under section 59 of the Family Law Act. The court must be satisfied that the contact sought is in the best interests of the child. People who are applying for contact don't need to get a criminal records check, a child protection records check or a check of provincial registry records for family law protection orders.

Child Support

The Divorce Act

Under section 15.1(1) of the Divorce Act, only married spouses may apply for child support orders under the act. As a result, a child's grandparent, extended family member or another person who is not a parent of the child yet has parenting time with a child under a Divorce Act order must pursue child support under the Family Law Act if child support is needed. You can't apply for child support under the Divorce Act.

The Family Law Act

The Family Law Act says, at sections 146 and 147(1), that every parent, stepparent and guardian has a duty to provide support for their child, as long as the child:

  • is a "child" as defined by section 146 of the act,
  • hasn't become a "spouse," and
  • hasn't withdrawn from the care of their parents or guardians under section 147(1).

Under section 149 of the act, the court can make an order requiring a parent to pay child support to "a designated person" on the application of a person "acting on behalf of the child:"

(1) ... on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by

(a) a child's parent or guardian,

(b) the child or a person acting on behalf of the child ...

As long as the child lives mostly with their grandparent, extended family member or another person who is not a parent of the child, the grandparent, extended family member or other person can ask for an order for child support against one, two, or more of the child's parents and guardians.

According to section 150(1) of the Family Law Act, when an order for child support is made, the amount of the support order is to be determined under the Child Support Guidelines. As a result, the whole of the Guidelines apply when a child's grandparent, extended family member or other person is asking for child support, just as they apply when a parent or a guardian is asking for child support, including:

  • the tables that are used to calculate the amount of child support payable,
  • the exceptions that allow child support to be paid in an amount different than the usual table amount, and
  • the rules about the payment of children's special or extraordinary expenses.

Child support is discussed in a lot more detail in the Child Support chapter.

Resources and links

Legislation

Links

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 25, 2021.


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