Never Married, Never Lived Together: Parenting and Child Support Rights in BC

Not every family starts with a couple who lived together. Some parents had a short relationship, some never lived under the same roof, and some found out about the pregnancy after the relationship ended. British Columbia's Family Law Act covers all of these families, but it does not treat every parent the same way.

This guide explains who counts as a parent, why a parent who has never lived with the child may not be a guardian, how that parent can gain parenting time or contact, and why the duty to pay child support applies regardless of the parents' relationship.

First question: who is a parent?

For a child not born through assisted reproduction, section 26 of the Family Law Act (FLA) says the child's parents are the birth mother and the child's biological father. Marriage and living together do not decide parentage. They only create presumptions, for example where the father was living with the birth mother in a marriage-like relationship within 300 days before the birth, or signed a statement acknowledging paternity under the Vital Statistics Act.

Where parents never lived together, those presumptions often do not apply, and parentage may be disputed. A court can make an order declaring whether a person is a child's parent (section 31) and can order parentage tests, including DNA tests (section 33).

Guardianship: the never-resided rule

Under section 39 of the FLA, while a child's parents live together and after they separate, each parent is the child's guardian. Parents who never lived together are treated differently. Section 39(3) says a parent who has never resided with the child is not the child's guardian unless one of the following applies:

• An assisted reproduction arrangement under section 30 makes the person a parent.
• An agreement. The parent and all of the child's guardians agree that the parent is also a guardian.
• Regular care. The parent regularly cares for the child.

The key is residence with the child, not with the other parent. A parent who never lived with the child, and does not regularly care for them, is a parent but not a guardian.

Why guardianship matters

Section 40 says only a guardian may have parental responsibilities and parenting time. Under section 41, parental responsibilities include decisions about the child's schooling, health care and where the child lives. A non-guardian parent cannot share in those decisions as of right. Our article on guardianship, parenting time and decision-making in BC explains these terms in detail.

How a non-guardian parent can become involved

• Agree with the guardian. The simplest route under section 39(3) is a written agreement with the child's guardian or guardians that you are also a guardian. A parenting plan can be part of the same agreement.
• Apply to be appointed guardian. Under section 51, a court can appoint a person as a child's guardian. The applicant must provide evidence about the child's best interests, which section 37 makes the only consideration.
• Contact instead of guardianship. A person who is not a guardian, including a parent, can have contact with a child by agreement with the guardians or by court order under sections 58 and 59. Contact can be in person or in other forms, and the court can require supervision where that is in the child's best interests.

Which route makes sense depends on the child's age, the history of involvement and what each parent can realistically offer. Courts do not presume that any particular arrangement, including equal time, is in a child's best interests (section 40(4)).

Child support applies regardless of the relationship

Child support follows parentage, not marriage, cohabitation or guardianship. Section 147 of the FLA says each parent and guardian of a child has a duty to provide support for the child. A parent who never lived with the child or the other parent still owes support, and a parent with no parenting time is not excused because of it.

Under section 149, the child's parent or guardian, or the child or someone acting for the child, can apply for a child support order. Section 150 requires the amount to be set under the child support guidelines. Under section 3 of the Federal Child Support Guidelines, the basic amount for a child under the age of majority is the table amount for the number of children and the paying parent's income, plus any special or extraordinary expenses under section 7. Our guide to how child support is calculated in BC walks through the tables and income rules.

The reverse is also true: support and parenting are separate questions. Paying support does not by itself make a parent a guardian; the routes to guardianship are the ones in section 39(3) and section 51. Parenting time and contact are decided on the child's best interests under section 37, and support has its own process.

Practical points for parents who were never a couple

• Sort out parentage early if it is in doubt, because both guardianship and support depend on it.
• Put arrangements in writing. An informal understanding about visits or money is hard to enforce and easy to dispute.
• Keep records of the time you spend caring for the child and any payments you make or receive.
• Do not wait to claim support. Support can sometimes be claimed for past periods, but delay can affect what a court will order; see our article on retroactive child support in BC.

Never lived together? Clarify your rights before positions harden

Our family lawyers can explain whether you are a guardian under the Family Law Act, help you negotiate or apply for guardianship, parenting time or contact, and deal with child support on either side.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.