Children Born Outside Marriage

This script discusses issues relating to children born to parents who aren’t married, including parents in unmarried spousal relationships, sometimes called common-law relationships. These issues include birth registration, guardianship, parenting arrangements and contact, inheritance rights, and so on.

What is the legal status of a child born outside of marriage?

There is no legal difference in the status of a child born to someone who is legally married, to a single mother, to a person in an unmarried spousal relationship, to a couple in a same-sex relationship or to a couple in an opposite-sex relationship. A child born outside marriage is treated in exactly the same way as a child born inside marriage.

How is the birth registered when a child is born outside of marriage?

BC’s Vital Statistics Act requires that a child born in BC must be registered with the government by filing a Registration of Live Birth within 30 days after the birth. The Act usually requires both parents to sign this form, unless one or both parents are incapable. If the father is unknown or doesn’t acknowledge that he is the father, the child’s mother can sign the birth registration alone.

How is the child’s last name chosen?

The parents may choose any last name they like, if they agree. Otherwise, the child’s last name will be a hyphenated combination of both surnames in alphabetical order. If only the birth mother signs the birth registration, she can choose the last name.

Can the child’s birth certificate be changed later to show the other parent?

If the parents agree, they can amend the birth registration to list them both as parents and, if they want, to change the child’s name. If they don’t agree, the other parent may apply to court to establish the child’s parentage and ask for a change to the child’s birth certificate, including a change to the child’s last name.

Before making name changes, however, the court must consider the change to be in the best interests of the child. The court must also consider the wishes of any child over age seven, and children over 12 must agree to the change in last name. If these conditions are satisfied, the court may order the last name to be the last name of either parent or a hyphenated combination of their last names.

The Vital Statistics Agency handles birth registrations

For more information, call the Vital Statistics Agency at 604.660.2937 in the lower mainland, 250.952.2681 in Greater Victoria, and toll free 1.800.663.8328 if you live elsewhere in BC. Also check the Agency’s website at www.vs.gov.bc.ca.

Does a parent have to consent to the adoption of his or her child?

Say a single mother wants her child to be adopted by another family. In this case, BC’s Adoption Act says that the consent of the biological father is usually required. The father must be notified about the proposed adoption, unless the court rules that it’s not in the child’s best interests or the circumstances justify not giving the father notification. There is also a Birth Father Registry that will ensure that registered fathers are notified of a proposed adoption.

For more information on adoption, refer to refer to script 145 on “Adoption” and script 146 on “Adoption Registries”.

Is a parent automatically a guardian of his or her child?

Sometimes. The Family Law Act says that parents who live together after their child’s birth are the child’s guardians, both during their relationship and after they separate. For parents who never lived together after their child was born, they are only presumed to be a guardian of their child if:

• they are a parent because an assisted reproduction agreement says they are a parent;
• the parent and all of the child’s guardians make an agreement that the parent will be a guardian; and,
• they regularly care for the child.

However, this also means that a single father or single mother who never lived with the other parent after the child’s birth is not a guardian of his or her child, even if the parent cares for the child full time. This is probably a mistake in the writing of the legislation that will probably be corrected in the future.

If a parent isn’t a guardian, the parent can apply to the court to be appointed as the guardian of his or her child.

What does “guardianship” mean?

People who are the guardians of a child have parental responsibilities, the responsibility for making decisions about how the child is nurtured and raised, and the duty of making those decisions in the child’s best interests. Parental responsibilities include making decisions about where the child lives and goes to school, how the child gets treated when sick, and giving or withholding permission on behalf of the child.

Parental responsibilities can be shared between two or more guardians, meaning that that they are all responsible for making decisions about the child and must consult each other when making decisions. Parental responsibilities can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, and can make those decisions without having to consult the other guardians.

The time a guardian has with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision-making about day to day matters involving the child.

What does it mean if a parent isn’t a guardian?

A person who isn’t a guardian of a child, including a parent who isn’t a guardian, doesn’t have any parental responsibilities for the child and isn’t entitled to be consulted when decisions are being made about the child.

The time someone who isn’t a guardian has with a child is called contact.

How do you apply to be appointed as a guardian? Only people who aren’t already guardians need to be appointed as a guardian. To be appointed, you must apply to court and must complete a special affidavit required by the court rules. This affidavit requires you to get a criminal records check, a protection order registry check and a records check from the Ministry for Children and Family Development, and to provide certain information about the children that are and have been in your care.

Can you get child support for children born outside marriage?

Child support is a right of the child not the parent, and each parent is legally responsible for the financial support of their children, whether the parents are married to each other or not.

For more information on child support, refer to script 117 on "Child Support”.

What are the inheritance rights of children born outside of marriage?

The rights depend on whether or not the parent made a will and whether the parent has a spouse or other children at the time of death:

• If a person has a spouse and dies without a will, the spouse is entitled to a certain share of the dead person’s estate and the person’s children split what’s left, whether they’re born outside marriage or not.
• If a person dies without a will and doesn’t have a spouse, the person’s children are entitled to share in the dead person’s estate, whether they’re born outside marriage or not.
• If a person dies with a will, children born outside of marriage will receive whatever the dead person has left to the children in his or her will.

However, the child can apply to vary the will if the child believes that he or she didn’t receive a fair share of the dead person’s estate.

For more information on inheritance rights, refer to script 179 on "The Disappointed Beneficiary” and script 177 on “What Happens When You Die Without a Will”. As wills can be complicated, you should get advice from a lawyer.

More information

• For more information about family law and children, see the Children page of the wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC.

• For more information about guardianship, contact and applications to be appointed as a guardian, see the page Guardianship, Parenting Arrangements and Contact.

[updated November 2014]

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In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

Real property or personal property received as a result of the provisions of a will or under the Wills, Estates and Succession Act. Inheritances do not usually qualify as family property subject to division between spouses. See "family property," "real property" and "will."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

To change or alter a pleading or document that has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "amended separation agreement."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

In family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

(1) A person charged with the legal care of someone under a legal disability. (2) A term under the Family Law Act referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."

(1) A means of conceiving a child other than by sexual intercourse, usually with medical or technological intervention, or (2) when someone requires help operating the photocopier.

(1) In law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error not made in bad faith. (2) In contract law, an unintentional misunderstanding as to the nature of a term agreed to in a contract that may justify setting aside all or part of the contract. See "bad faith" and "contract."

An act; a statute; a written law made by a government. See "regulations."

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "decision-making responsibility" and "guardian."

In law, a legal obligation to do or not do something, whether under the common law or pursuant to legislation. See "act" and "common law."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."

An order available under the Family Law Act for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting, or stalking a person, as well as orders restraining someone from going to a person's home, place of employment, or school. See "application," "ex parte" and "restraining order."

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

In law, an order of a court cancelling or changing an earlier order of the court. See "order."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."