Am I a Guardian?
In British Columbia, the Family Law Act defines people who are ‘parents’ differently from people who are ‘guardians.’ When children are not conceived through assisted reproduction, ‘parents’ include (a) a birth mother, or the person who physically gave birth to the child; and (b) a biological father, or the person who was married to or in a common-law relationship with the birth mother, or the person who acknowledges that he is the father.
Though parents are also usually guardians, this isn’t always the case. Guardians are typically people who have lived with the child and are a biological parent, been acknowledged as a guardian by all of the child’s other guardians, or regularly cared for the child and are a biological parent.
Several common circumstances we see at Mountain Peak Law where a biological parent is not a guardian are as follows:
The parents separated during the child’s pregnancy and therefore the biological father was not living with the biological mother at the time of the child’s birth, as occurred in G.M. v S.G., 2020 BCPC 307.
The parents were still together at the time of the child’s birth but were not living in the same residence, as occurred in J.M.H. v J.R.W., 2018 BCPC 269.
The parents were never in a relationship and so the child never lived with both parents at the same time.
In addition to being defined differently, parents and guardians have different legal rights under the Family Law Act. Guardians have the right to “parenting time” and “parenting responsibilities,” which means that they can care for and supervise the child, as well as make daily decisions about the child’s upbringing on matters such as cultural exposure, financial interests, religious practices, educational needs, place of residence, and health requirements.
Parents who are not guardians do not have any legal rights to the child and thus cannot make decisions about the child’s life. At most, parents who are not guardians may have “contact” with a child, which may be limited to supervised or unsupervised visits with a child that are either court-mandated or agreed to by the child’s guardian.
Despite not having parenting time or parenting responsibilities, parents who are not guardians do still have an obligation to pay child support. It is the child’s right to receive child support from both their parents and their guardians. Therefore, a guardian can pursue a parent for child support and additional expenses (i.e., daycare, extracurriculars, medical and dental costs), even if the paying parent has never met or exercised any parenting time with the child.
If you are a biological parent and would like to be appointed as a guardian, or if you are a guardian and would like to pursue child support from a biological parent, reach out to Mountain Peak Law. We will give you specified legal advice tailored to your exact situation.
