Grandparents and Extended Family Members

People other than a child's 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 a neighbour, couldn't also have an interest in a child.

This page 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.

Introduction

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:

1. where one or both of the guardians of the children are dead;
2. where one or both of the guardians have abandoned the children or the care of the children;
3. where there are serious concerns about the fitness of the guardians to care for the children; or,
4. where they are being denied time or involvement with the children.

Their concerns are usually about supervising the parenting of the children or getting a schedule in place that will let them see the children on a regular basis.

Legislation

Two laws might apply to caregivers and extended family members who are 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.

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.

The Divorce Act

Under 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.

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 in which to bring the application. .

The Family Law Act

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 caregivers and extended family members can start a court proceeding, and ask that the new proceeding be joined to the 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.

If the guardians are not in court, a child's caregivers and extended family members can start a court proceeding against the guardians and ask for orders about the children.

Rights and Responsibilities of Caregivers and Extended Family

Couples who neither married nor lived together but have had a child together can ask for orders about the care of their child and child support for their child under the provincial Family Law Act.

The Care of Children

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.

Under s. 39, the people who are presumed to be the guardians of a child are:

1. the child's parents, as long as they lived together;
2. a person who is a parent of a child under an assisted reproduction agreement; and,
3. a parent who "regularly cares" for the child.

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.

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:

1. must settle for having contact with the child and not being able to participate in parenting the child;
2. 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,
3. 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.

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:

1. the Applicant's relationship to the child;
2. the other children presently in the care of the Applicant;
3. any history of family violence that might affect the child; and,
4. 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).

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.

Child Support

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.

Under 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:

1. the tables that are used to calculate the amount of child support payable;
2. the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
3. 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.

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.

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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.

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.

Introduction

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 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.

Relief Available to Unmarried Couples

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.

Children

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.

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.

Property

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.

Government Benefits

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.

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.

Relief Not Available to Unmarried Couples

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.

Spousal Support

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.

Property

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.

Child Support

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.

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:

1. the tables that are used to calculate the amount of child support payable;
2. the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
3. 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.

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 Care of Children

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.

Under s. 39, the people who are presumed to be the guardians of a child are:

1. the child's parents, as long as they lived together;
2. a person who is a parent of a child under an assisted reproduction agreement; and,
3. a parent who "regularly cares" for the child.

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.

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:

1. must settle for having contact with the child and not being able to participate in parenting the child;
2. 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,
3. 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.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA

Links

• bulleted list of linked external websites referred to in page

CRA webpage on child benefits