Children Born Outside Marriage

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Renée Aldana, South Coast Law Group in October 2018.

Under BC law, a child born outside of marriage is treated the same as a child born to married parents. However, there are some implications for parents and other practical considerations for parents who have children born outside of marriage.

What you should know

The legal status of a child born outside of marriage

Under the BC Family Law Act, a child is a person under 19 years old. There’s no difference in the legal status of a child born to someone who is married and a child born to someone who is not married.

Put another way, a child born outside of marriage is treated exactly the same in BC law as a child born to married parents. It makes no difference whether a child is born to a single parent, to a person in a common-law relationship, to a couple in a same-sex relationship, or to a couple in an opposite-sex relationship.

Registering the birth of a child born outside of marriage

Under the law in BC, a parent must register the birth of a child with the government. This has to be done within 30 days after the child’s birth.

Birth registration can be done online by the birth mother and the other parent. Each parent must be present during the online registration to certify the registration.

Another option is to ask for a paper birth registration form by calling the Vital Statistics Agency. This is the government office that handles birth registrations. Call 250-952-2681 in Victoria, or 1-888-876-1633 elsewhere in BC.

Both parents must sign the birth registration form, unless one or both parents are incapable. If the child’s father is unknown or doesn’t acknowledge he’s the father, the child’s mother can sign the birth registration form alone.

Choosing the child’s last name

The parents may choose any last name they like for a child, as long as they agree on it. Under BC law, if the parents can’t agree on a last name for a child, the child’s last name will be:

  • the parents’ last names hyphenated (for example, “Leung-Boden”), or
  • the parents’ last names combined in alphabetical order (for example, “Boden Leung”).

If only the birth mother signs the birth registration, she can choose the child’s last name.

Placing a child for adoption

Under the law in BC, a parent or guardian of a child may place the child for adoption. This starts a process to legally transfer parental rights and responsibilities for the child to another family.

Usually both birth parents have to agree to place a child for adoption. A birth mother’s written consent is required unless the child is in the permanent care of the child welfare authorities.

A biological father’s consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be found or if to do so is in the child’s best interests.

For more on adoption, see our information on adoption and adoption registries.

Parents are generally guardians of a child

Under the law in BC, while a child’s parents are living together and after they separate, each parent is the child’s guardian.

A parent who has never lived with their child is not a guardian unless:

  • the parent regularly cares for the child,
  • the parent and all of the child's guardians make an agreement that the parent is also a guardian, or
  • they are a parent under a written agreement providing for the child’s birth through assisted reproduction.

A parent who isn’t a child’s guardian does not have “parental responsibilities” for the child. This means that parent doesn’t have a say in how the child is raised.

If a parent isn’t a guardian of their child, they can apply to court to become one. Other people (such as grandparents or step-parents) can also apply to court to become guardians.

Guardians have parental responsibilities and parenting time

Under BC law, guardians of a child have parental responsibilities and parenting time. Together, these are called parenting arrangements.

Parental responsibilities

Parental responsibilities are the duties that guardians have while caring for a child. They are also the decisions guardians make about how to raise the child, based on the child’s best interests. This includes things like deciding where the child lives and goes to school, how the child gets treated when sick, the religion practiced by the child, and the language they speak.

Where two or more guardians share parental responsibilities, they must consult each other when making their decisions. But parental responsibilities can also be divided between a child’s guardians in a separation agreement, parenting plan, or court order. For example, a court might order that one guardian should be able to make final decisions about a child’s healthcare or education, if that would be in the child’s best interest.

Parenting time

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

A parent has an obligation to pay child support

Child support is every child’s right. Each parent is legally responsible to financially support their child. That’s the case whether the parents are married spouses, unmarried spouses, or not spouses at all. Even if you never lived with your child or the child’s other parent, you are still obligated to pay child support. A step-parent may also have an obligation to financially support a child.

The obligation to support a child lasts until the child reaches 19 years old (the age of majority in BC). A parent’s child support obligation may continue beyond age 19. This can happen if the child is financially dependent on the parent because of disability or illness, or because the child is pursuing post-secondary education.

For more about support obligations, see our information on child support.

Common questions

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

If the parents agree, a child’s birth registration can be changed to list them both as parents. The parents can also change the child’s name on the birth registration.

If the parents don’t agree, the parent who wants to have their name added can apply to court for an order declaring they are the child’s parent. They can also ask that a child’s birth certificate be changed, including a change to the child’s last name. An application to the Vital Statistics Agency to change the child’s birth certificate can follow.

Before making name changes, though, the court has to believe that the change is in the child’s best interests. And if the child is age 12 or older, the child must consent in writing to the name change. If these conditions are satisfied, the court may order a change of the child’s last name to be the last name of either parent or a hyphenated combination of their last names.

What are the inheritance rights of a child born outside marriage?

What a child is entitled to inherit depends on a couple of things: whether the parent made a will, and whether the parent has a spouse or other children at the time of their death.

Under the law in BC, if a person dies without a will and has a spouse, the spouse is entitled to a certain share of their estate. The deceased’s children split what’s left, whether they’re born outside the marriage or to married parents.

If a person dies without a will and doesn’t have a spouse, their children are entitled to share in the whole estate, whether they’re born outside the marriage or not.

If a person dies with a will, their children receive whatever the deceased left to them in the will. But any child (whether born outside of marriage or to married parents) can apply to court to change the will if they feel their portion of the estate is not "adequate, just and equitable in the circumstances." BC law requires a person in their will to provide adequate support for their spouse and children.

For more on inheritance rights, see our information on challenging a will and when someone dies without a will.

If I break up with the other parent, how do issues affecting our child get sorted?

If you and your child’s other parent break up, you need to figure out how you’ll make decisions about the child. This includes where the child will live and how much time the child will spend with each parent.

If you both agree on these issues, you can make a written agreement. We have information on separation agreements.

If you can’t agree on these issues, you might consider mediation. This is a process where parties in conflict meet with a neutral person, called a mediator. The mediator helps you find a solution you can both agree on.

If you still can’t come to an agreement, one of you may decide to bring a court action. A judge will make decisions according to the best interests of the child. The court can also make decisions about how often the child will see each parent (called parenting time or contact), and how parenting decisions will be made (called parental responsibilities).

For more on these issues, see our information on guardianship, parenting arrangements, and contact.

Are parenting time and child support related?

Paying child support is a legal obligation. But, it’s not simply a trade of money for time with the child. Nor is it a fee that’s paid to have time with the child. Though there are exceptions (such as in shared parenting situations), child support is not determined by the amount of parenting time or contact a parent has with a child. Rather, child support is determined based on the parent’s income. For more on this, see our information on child support.

Who can become a child’s guardian?

While a child’s parents are living together and after they separate, each parent is the child’s guardian.

A parent who has never lived with their child is a guardian if they regularly care for the child. They can also become a guardian by making a written agreement with the child's other guardians. Or they can apply to court to be made a guardian.

A person who isn’t a parent can apply to court to be made a guardian.

Someone can also become a child’s guardian through being named as one in a guardian's will. Or by being appointed when a guardian dies or becomes incapacitated.

What’s involved in applying to court to become a guardian?

If you apply to court to become a guardian, the law in BC requires you to provide information about why that would be in the best interests of the child. You have to:

  • fill out a special affidavit (a legal document where you make statements about facts you say are true)
  • get a criminal record check
  • get a record check from the child protection authorities
  • provide information about any children that are and have been in your care

I have a new spouse. Can we change my child’s last name to my spouse’s last name?

A parent can apply to legally change their child’s last name. To do so, you need the agreement of several others involved. All other guardians of the child must agree. Your spouse must agree, if you want to change the child’s name to your spouse’s last name. And your child must agree, if the child is age 12 or over.

The Vital Statistics Agency can decide to approve an application for a name change even if a required consent is missing. For more about changing a child’s last name, see the agency’s website.

Does a stepparent have an obligation to pay child support?

Quite possibly. Under the law in BC, a stepparent is a spouse of the child's parent who lives with the child's parent and the child.

A stepparent may have a duty to provide support for a stepchild if:

  • they contribute to the support of the child for at least one year, and
  • a claim for child support is made against the stepparent within one year of their last contribution.

The stepparent's obligation to pay child support is secondary to that of the child's parents and guardians. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long the child lived with the stepparent. A number of factors come into play. It’s a good idea to consult a lawyer if a stepparent is involved.

For more about support obligations, see our information on child support.

I’m in a common-law relationship. Can I adopt my spouse’s child?

You can apply to adopt a child in BC if you are 19 years or older and live in BC. You don't need to be married to adopt. You can apply to adopt if you're single or in an opposite-sex or same-sex relationship. For more on adoption, see our information on adoption and adoption registries.

My ex-partner is abusive. What if I’m concerned for my child’s safety?

If you or your children are being threatened by a former partner, you can apply for a protection order. This is a court order to protect one person from another.

Anyone can apply for a protection order on behalf of a family member (such as a child) whom they believe is at risk of family violence. A protection order can say your partner must stay away from you and your children. It can also restrict how your partner communicates with you.

If your partner breaks this order, they can face criminal charges. For more on protection orders and other ways to stay safe, see our information on family violence.

Who can help

With more information

The wikibook JP Boyd on Family Law explains legal issues affecting children.

Legal Aid BC’s Family Law website has information and self-help guides on legal issues affecting children.

Free and low-cost legal help

Family justice counsellors in Family Justice Centres throughout BC can help you with guardianship, parenting, child support, and related issues. Their services are free.

Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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