Grandparents and Extended Family Members

People other than a child's biological 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 neighbour, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is primarily directed to grandparents, although it applies equally to other people who are not the parent of a child.

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:

1. getting contact with the children;
2. supervising the parenting of the children when they are with a guardian; or,
3. being appointed as a guardian of the children.

No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the British Columbia Supreme Court, M.(D.W.) v. M.(J.S.), the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded to the custodial parent and that parent's ability to determine the child's best interests."

Legislation

Two laws might apply to non-parents 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 non-parents can apply in court, and it's important to understand which law might be applicable.

The Divorce Act

According to 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 the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the Divorce Act, since the act only applies to disputes between married spouses.

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.

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.

Custody and Guardianship

There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, J.R. v. D.W.:

"Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved."

The Supreme Court of Canada emphasized the children's best interests a bit more strongly in Racine v. Woods, a case from 1983:

"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."

Nevertheless, grandparents and other non-parents who are seeking custody or guardianship of a child will face a difficult challenge, especially where both guardians are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

1. ill-treatment, mistreatment and neglect of the children;
2. chronic drug or alcohol use, a partying type of lifestyle;
3. instability of the guardians' lifestyle and living situation;
4. abandonment of the children by the guardians, or an existing status quo in which the non-parent is primarily responsible for the care of the children; and,
5. poor parenting skills on the part of the guardian.

Grandparents and other non-parents shouldn't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded custody of their grandchildren. It is possible to succeed on a custody application, although the chances of success depend wholly on the circumstances of each case.

Access and Contact

There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody, and the court is being asked to challenge the parent or guardian's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent or guardian.

Grandparents and other non-parents do not have a presumptive right of access to or contact with children under either the Divorce Act or the Family Law Act, but they can ask the court to make an order giving them access to their grandchildren. The 1993 Supreme Court of British Columbia case of Chapman v. Chapman sets out the general rules governing applications for access or contact by non-parents:

• The burden is on the non-parent to show that the proposed access or contact is in the child's best interests.
• The child's guardians have a significant role and the court should be slow to interfere with the guardians' discretion, and should only do so when satisfied that the access or contact is in the child's best interests.
• It is not in the child's best interests to be placed in circumstances of conflict between guardians and non-parents, and access or contact should not be given where it would only escalate the conflict between the parties.
• Non-parents may also have to demonstrate that they offer some positive benefit to the child before access or contact will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access or contact that the guardians will agree to.

Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occur during the time that their child has the grandchild. In other words, maternal grandparents will usually have access, if the court makes the order at all, during the mother's time with the child. Where only one guardian is in the picture, the court will usually determine what access the grandparents ought to have independently of the interests of the guardian.

As with applications for custody or guardianship, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this discussion. There are numerous cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an application for access or contact.

Financial Support

When a non-parent obtains custody of a child or an order that the child live mostly with him or her, that person can apply for child support to be paid by the guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the Family Law Act; they cannot apply under the Divorce Act.

Grandparents are also entitled to ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.

OLD

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