Parents

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 may have an entitlement to participate in raising the child. Although the obligation to pay child support comes from the simple fact of being a parent, whether you meant to be a parent or not, being a parent doesn't come with the right to be involved in parenting a child. It is the child's right to benefit from the payment of child support and the child's right to be parented properly, to be provided with food, shelter, healthcare and clothing, and to be nurtured toward adulthood in the best way possible.

Children have these rights whether their parents are married, living together in a marriage-like relationship or have no relationship with each other at all. This section is for unmarried parents who have had a child but never lived together, and, as result, don't qualify as "spouses" under the Family Law Act. 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 parents have to deal with, child support and parenting children.

Introduction

The provincial Family Law Act applies to anyone who is the parent of a child, regardless of the nature of their relationship with the other parent or parents of their child, and regardless of whether they are the parent of the child as a result of natural reproduction, adoption or assisted reproduction.

The act talks about how to identify the parents of a child are, when the child is born by natural reproduction or assisted reproduction. When a child is adopted, the Family Law Act says that the child's parents are determined by the provincial Adoption Act.

The act also talks about how parents can:

1. ask for declarations and orders about who the guardians of a child are;
2. make agreements or ask for orders about parental responsibilities and parenting time with a child, if the parent is also a guardian of the child;
3. make agreements or ask for orders about contact with a child, if the parent is not a guardian of the child;
4. make agreements or ask for orders about the payment of child support; and,
5. ask for orders for the protection of people.

Parents who don't qualify as "spouses" under section 3 of the Family Law Act — see the first section in this chapter for more information about who qualifies as a spouse under the act — cannot use the act to ask for orders about:

1. the payment of spousal support;
2. the division of property and debt; or,
3. orders for the protection of property.

The federal Divorce Act only applies to people who are or were married to each other; it doesn't apply to people in unmarried relationships, including parents who aren't married to each other.

Relationships between people who aren't parents or spouses

Family law doesn't have much at all to do with people who are dating and don't have a child. They're not "spouses" under the Family Law Act, they're not "parents," and since they don't have a child, they're not "guardians." The Family Law Act just doesn't apply to them because of the nature of their relationship.

There are only a few ways the law can affect people in relationships like this. If there is violence or non-consensual sexual activity, the parts of the Criminal Code that talk about things like assault, battery, sexual assault, rape, stalking, unlawful confinement, and abduction might apply, and those are issues that the police deal with. If they sign a lease together, buy something together or take out a loan together, then the law of contract or the law of property might be used to figure out who's entitled to which assets and responsible for which obligations. If they buy property together, the provincial Partition of Property Act will let them ask the court to sell the property and divvy up the proceeds. I suppose that if they split up and start bad-mouthing each other on social media, then tort law and the law about defamation might also be relevant.

Unless there is something like this going on, when people who are dating each other split up, that's it, their relationship is over without any legal entitlements at all.

Relationships between people who are parents but aren't spouses

Family law does talk — and it talks a lot — about people who are parents. While parents who aren't spouses can have all the same legal issues as people who are dating, under the criminal law, the law of contract, the law of property, and tort law, their concerns will mostly revolve around parenting and supporting their child. While they might also be concerned about tax benefits and credits relating to their child, like the equivalent-to-spouse credit under the federal Income Tax Act, the Canada Child Benefit and the BC Child Opportunity Benefit, what we're really talking about is parenting and child support.

Who is a "child"

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Agreements available to unmarried couples

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. People can make any kind of contract they want, as long as the contract isn't made for an illegal purpose and doesn't require a person to do something illegal. There's no reason, for example, why two people couldn't make a contract requiring one of them to wear purple shirts on Thursdays in exchange for a box of ants. Although it's hard to imagine why anyone would want such a contract, it's still possible and it would be enforceable in court provided that the agreement was properly written out and signed.

This section has just gone through the sorts of orders unmarried couples can ask for under the Family Law Act. Essentially, we're talking about orders about the care of children and the payment of child support. If an unmarried couple was going to have an agreement, it would probably talk about these two issues. However, like the contract about shirts and ants, there's no reason why an unmarried couple couldn't make an agreement that also talked about the payment of spousal support and the division of family property and family debt. Although the couple are under no legal obligation to make a contract about these things, they can do so if they want.

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 provincial supports, the Canada Child Benefit, and the National Child Benefit Supplement 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 federal government has a helpful online child benefits calculator that estimates the amount of benefits available from federal and provincial sources based on information you provide.

Rights and responsibilities of unmarried parents

Couples who are not married and have not 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.

Child support

Child support is payable by anyone who is the parent of a child, regardless of the nature or brevity of the relationship that produced the child. The Family Law Act says, at section 147, that "each parent" has a duty to provide support for their child.

Under section 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:

• 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 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 that 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.

You can find additional information about child support and the Guidelines in the chapter Child Support. You can find additional information about paternity and paternity testing in the chapter Other Family Law Issues, in the section Parentage and Assisted Reproduction.

The care of 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 in relation 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, counsellors, coaches, and so on.

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

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

In other words, if a couple has 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 they regularly care 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 isn't a guardian has three choices. They:

• must settle for having contact with the child and not being able to participate in parenting the child,
• must prove that they regularly care 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 section 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. Applications for appointment as a guardian are discussed in more detail in the Guardianship, Parenting Arrangements and Contact section of the Children chapter, under the heading "Being a guardian and becoming a guardian."

Supporting parents

Parental support

The old Family Relations Act used to allow parents to sue their adult children for support. That part of the Family Relations Act was repealed on 24 November 2011 and is not carried forward in the new Family Law Act. As a result, claims for parental support may no longer be brought in British Columbia.

Resources and links

Legislation

• Family Law Act
• provincial Income Tax Act
• Universal Child Care Benefit Act
• federal Income Tax Act.

Links

• Canada child benefits calculator
• Canada Revenue Agency website "Overview of child and family benefits"
• BC Government website "Family Benefits"
• Legal Services Society's Living Together or Living Apart, chapter 1 on types of relationships
• Dial-A-Law Script "Introduction to Family Law"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 27 February 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.