Grandparents and Extended Family Members: Difference between revisions

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{{Clicklawbadge
| resourcetype = <br/>a resource for<br/>
| resourcetype = <br/>a resource for<br/>
| link        = [https://www.clicklaw.bc.ca/helpmap/service/1133 Grandparents raising <br/> grandchildren]<br/>'''and information on'''<br/>[https://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents <br/>raising grandchildren]
| 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 also have a legal relationship with a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — ,although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.  
}}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.  


This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.
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.


<span style="color:#D2691E">'''Important changes'''</span> <br />
==Introduction==
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.


==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:


Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:
*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.


*where one or both of the guardians of the children are dead,
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.
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability 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 supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children 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.  


Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'', whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.
*'''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 might be applicable.
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''===
===The ''Divorce Act''===


Under section 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' 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.
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]].)


Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.  
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]].)


<span style="color:#D2691E">'''Important changes'''</span> <br />
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.
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. People who want to apply for contact with a child must get the court's permission first.


===The ''Family Law Act''===
===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 who have ''contact'' with a child.
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|''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]].)


If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.
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 guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.
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===
===Orders and agreements===


This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. 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 give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.
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:


A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member 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.


* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'',
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.
* provide the caregiver or extended family member 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 caregiver or extended family member, under section 147(1) of the ''Act'', if the child is living with the caregiver or extended family member.


It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section.
==Rights and responsibilities of grandparents and others==


==Rights and responsibilities of caregivers and extended family members==
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.


A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that ''Act'' 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''.


Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.
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.  


A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.
===Parenting children===


===The care of 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''====
====The ''Divorce Act''====


When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.
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 in Family Law Matters|Children and Parenting After Separation]].
 
=====Parenting orders and "standing in the place of a parent"=====
 
Section 16.1 of the ''[[Divorce Act]]'' says this:
 
<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>
 
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 ''[http://canlii.ca/t/1fqmm Chartier v Chartier]''. In this case, the court said that:
 
<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>


To vary an order for custody or access, section 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:
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.


<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>
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).  


Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order they are asking for. The court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]].
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.


<span style="color:#D2691E">'''Important changes'''</span> <br />
=====Contact orders=====
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people.


Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including changing orders about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence
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''====
====The ''Family Law Act''====


Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights and obligations that go along with it, or for contact, they must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in in the chapter on [[Children in Family Law Matters|Children]], in the section [[Guardianship, Parenting Arrangements and Contact]].
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 in Family Law Matters|Children and Parenting After Separation]].


=====Guardianship, parental responsibilities and parenting time=====
=====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 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.
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, the people who are presumed to be the guardians of a child are:
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,
*the child's parents, as long as they lived together after the child was born,
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*a parent who "regularly cares" for the child.
*a parent who "regularly cares" for the child.


A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:
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 a child under section 51,
*applying for an order appointing them as a guardian of the child under section 51 of the act,
*being appointed as the standby guardian of a child under section 55, or
*being appointed by a guardian as the ''standby guardian'' of the child under section 55, or
*being appointed as the guardian of a child upon the death of a guardian under section 53.
*being appointed a guardian of the child upon the death of a guardian, as a ''testamentary guardian'' of the child, under section 53.


Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under section 51.
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 [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:
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:


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


Applicants must also get (1) a new criminal records check, (2) a child protection records check from the Ministry for Children and Family Development, and (3) a check of provincial registry records for any family law protection orders about them.
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.


=====Authorizations to exercise parental responsibilities=====
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.


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 caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.  
=====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:
The parental responsibilities that someone can exercise under a written authorization are:
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*requesting and receiving from third parties health, education, or other information respecting the child.
*requesting and receiving from third parties health, education, or other information respecting the child.


Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.
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 with a child=====
=====Contact orders=====


Any person can apply for contact with a child under section 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.
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===
===Child Support===
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====The ''Divorce Act''====
====The ''Divorce Act''====


Under section 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.
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''====


The ''Family Law Act'' says, at section 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by section 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under section 149, 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 a child:
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:"


<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>(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><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>(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>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child ...</tt></blockquote></blockquote>


As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.
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 act, where 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, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:
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 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 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.
*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==
==Resources and links==
Line 160: Line 206:
===Legislation===
===Legislation===


* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[[Divorce Act]]''
* ''[https://canlii.ca/t/551f9  Divorce Act]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
*[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===


* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [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
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* [https://www.justice.gc.ca/eng/fl-df/child-enfant/cst-orpe.html Child Support Table Look-up] from the Department of Justice
* Department of Justice [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Calculator]
*[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 6, 2021}
{{REVIEWED | reviewer = [[JP Boyd]], March 25, 2021}}


{{JP Boyd on Family Law Navbox|type=chapters}}
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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

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Introduction · Family Law in BC
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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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