Parents

Your relationship may have been brief, but if you have had a child with someone, you are both responsible for meeting the child's financial needs and you may both be entitled to participate in raising the child. Although the duty to pay child support comes from the simple fact of being a parent, whether you wanted 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 who 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 Family Law Act also talks about how parents can:

• ask for declarations and orders about who the guardians of a child are,
• 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,
• make agreements or ask for orders about contact with a child, if the parent is not a guardian of the child,
• make agreements or ask for orders about the payment of child support, and
• 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:

• the payment of spousal support,
• the division of property and debt, or
• 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.

Who is a "child?"

For the parts of the Family Law Act that talk about guardianship and parenting, a "child" is a person under the age of 19, the age of majority in British Columbia. For the parts of the act that talk about child support, the definition is a bit broader. Section 147 says this:

"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians

The most common "other reason" why an adult child cannot "obtain the necessaries of life or withdraw from the charge of his or her parents" is because the child is going to college or university.

Who is a "parent?"

People who are "parents" under the Family Law Act, including stepparents, are required to help their children by paying child support. People who are parents may also ask for orders about parental responsibilities and parenting time. People who aren't parents are usually limited to asking for orders giving them contact with a child.

Part 3 of the provincial Family Law Act provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the Adoption Act. Section 23 says this:

(1) For all purposes of the law of British Columbia,

(a) a person is the child of his or her parents,

(b) a child's parent is the person determined under this Part to be the child's parent, and

(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.

Section 26(1) says who a child's parents are presumed to be:

On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.

Sections 27, 28, 29 and 30 have other rules about who are the parents of children conceived by assisted reproduction. Under these rules people can agree that a child's parents are or aren't the birth mother and the child's biological father, and that other people will or won't be parents, including someone who donates sperm or eggs and someone who is the spouse of a child's birth mother.

Natural reproduction

Under section 26(1) of the Family Law Act, a child's parents are presumed to be the child's birth mother and biological father. It's normally pretty easy to tell who the birth mother of a child is. It's not always so easy to tell if a man is the biological father of a child.

Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother.

The presumptions of paternity

Under section 26(2) of the Family Law Act, a man is presumed to be the biological father of a child in one of the following circumstances:

(a) he was married to the child's birth mother on the day of the child's birth;

(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended

(i) by his death,

(ii) by a judgment of divorce, or

(iii) as referred to in section 21;

(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;

(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;

(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act;

(f) he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49.

Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a paternity test be conducted.

Paternity tests

Under section 33(2) of the Family Law Act, the court may

order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

Under section 33(1), a "parentage test" can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:

• Human leukocyte antigen tests: Human leukocyte antigen tests are a kind of advanced blood test that looks at the genetic markers on white blood cells to determine the likelihood that the child's antigens were inherited from a particular man. Their accuracy is northward of 96% but can be spoofed if the purported father has had a recent transfusion.
• Deoxyribonucleic acid tests: DNA tests look for overlaps in the child's unique genetic code with the genetic code from the purported father and the child's mother. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that the test is wrong are about 0.0001%. Testing is performed on biological samples, most commonly from mouth swabs, which are painless to obtain.
• Chorionic villi sampling: This is a prenatal procedure that can be performed during the 10th to 13th week of pregnancy. It consists of a DNA test on a sample of the baby's placenta. It is an unpleasant procedure that must be conducted either through the mother's cervix or her abdominal wall.
• Amniocentesis: This is a prenatal procedure that can be performed during the 14th to 24th week of pregnancy. It consists of a DNA test on a sample of amniotic fluid drawn through the mother's abdominal wall.

The DNA of a child is a combination of the DNA of the child's mother and father. DNA tests compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Because of the accuracy of DNA testing, a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, I don't recommend that you challenge the results of a DNA test. Save your money.

A number of companies serving British Columbia, such as Genetrack Biolabs, The DNALAB, and Orchid PRO-DNA, will perform legally admissible paternity tests at a cost of around $480 to $500, plus taxes, for one child and an alleged father, with additional costs for more children or alleged fathers. For tests usable in a legal proceeding, the labs will require each person contributing samples to attend in person at an authorized sample collection location.

Arranging for a paternity test

If the birth mother and the person might be the father agree to have a paternity test conducted, no court order is necessary. You simply contact the appropriate company and arrange to have blood or saliva samples taken and tested. The DNA tests are done with a mouth swab, generally, and legal paternity tests can be done with just samples from the child and the potential father. The results will be delivered to you directly. Some companies even offer home sampling kits that provide legally admissible test results, provided that the test is properly witnessed by someone else. Generally, however, legal paternity tests are conducted in an authorized collection centre where the identities of the sample providers and the integrity of the samples can be confirmed.

Where the parties don't agree to a test, one of them, usually the potential father, must apply to court for an order that samples be taken from the parties and the child and that a paternity test be conducted under section 33(2) of the Family Law Act. Under section 33(3), the court can also make an order about who must pay for the cost of the test.

Assisted reproduction

When one or two people need the help of others to have a child, some additional rules apply and some additional people can be a "parent" of a child. Under the rules described in sections 27 to 30 of the Family Law Act,

• one or two people who want to have the child, the intended parents, can be the parents of the child,
• the donor of sperm or an egg is not usually a parent of the child,
• a surrogate mother is usually a parent of the child, and
• the spouse of a surrogate mother is usually a parent of the child.

However, a written agreement made before the child is conceived can say that a donor of sperm or eggs is a parent, that a surrogate mother is not a parent, and that the spouse of a surrogate mother is not a parent. In theory, at least, a child born of assisted reproduction can have as many as six people who are their parents.

What's especially important about these rules is that a person who is a parent as a result of an assisted reproduction agreement is a parent for all purposes of the law in British Columbia, including family law and the law about wills and estates.

Adoption

People who adopt a child become the parents of that child when the court makes an adoption order under the provincial Adoption Act. At the same time, the birth mother and biological father of the child cease to have any parental rights or obligations with respect to the child. Unless the birth mother or biological father are jointly adopting the child with someone else, they become legal strangers to the child. They lose not only their obligation to pay child support, but also their right to ask the court for parental responsibilities or parenting time with the child.

Unlike the parts of the Family Law Act that talk about assisted reproduction, section 5(1) of the Adoption Act limits the number of people who can adopt a child to a maximum of two.

The rights and responsibilities of parents

Parents who aren't married and haven't lived together can make agreements or ask for orders about parenting their child and paying child support. The provincial Family Law Act is the law that the court will apply when making orders about guardianship, parenting and child support.

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.

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, including whether the pregnancy was planned or not, whether it came about as result of a sexual assault, or whether it came about as a result of some deception on the part of the birth mother. The only question that might be left open is whether or not the person being asked to pay child support is the "parent" of the child for whom support is sought. If that's an issue, a paternity test can always be taken under section 33 of the act.

You can find additional information about child support and the Child Support Guidelines in the Child Support chapter of this resource.

Parenting children

Under section 40(1) of the Family Law Act, only people who are the "guardians" of a child have parental responsibilities and parenting time with that child. People who are not the guardians of a child may have contact with the child, but they 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, and coaches.

Under section 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 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. (The curious thing about the way section 39 is written, is that neither parent is presumed to be a guardian if the parents didn't live together! This is not what the BC government meant in drafting that part of the Family Law Act, of course, and so far I'm not aware of any court decisions that have addressed the problem.)

A parent who isn't a guardian can become a guardian if the child's other guardians 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 can:

1. settle for having contact with the child and not being able to participate in parenting the child;
2. try to prove that they regularly care for the child, in order to be recognized by the court as a guardian of the child who is entitled to participate in parenting the child; or,
3. apply to be appointed as the guardian of a child under section 51 of the Family Law Act.

Applications for appointment as a guardian can be a bit difficult, as the applicant — the person who is making the application — must provide a special kind of affidavit that talks about all of the children who are and have been in their care, any civil or criminal court proceedings involving them that might impact on the safety of a child, and any involvement they might have had with the Ministry for Children and Family Development. The applicant must also provide recent Ministry 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."

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 won't usually qualify for any spousal benefits at all.

Benefits and tax credits relating to children are available to anyone who is a parent, regardless of the nature of that person's relationship with the other parent. The websites of the Canada Revenue Agency and the government of British Columbia have 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 the different federal and provincial programs.

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, April 8, 2021.

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.