Script 140 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses issues relating to children born to single mothers or parents in a common-law or same-sex relationship who aren’t legally married. These issues include birth registration, custody and access, inheritance rights, and so on.

What is the legal status of a child born outside of marriage?
A child is the child of his or her biological parents. There is no difference in law in the status of a child born to someone who is legally married, to a single mother, or to a person in a common-law or same-sex relationship. A child born outside marriage is treated in 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 within 30 days after the birth. The Act requires both parents to sign, unless one or both is incapable. The parents may choose any name they like, if they agree. Otherwise, the surname will be a hyphenated combination of both surnames, in alphabetical order. If the father is unknown or doesn’t acknowledge that he is the father, the child’s mother can sign the birth registration alone. She can then choose the surname for the child.

Can the child’s birth certificate be changed later to show the father?
If both parents later agree (for example, they reconcile, or the father acknowledges his child), they can amend the registration and change the surname of the child. If they don’t agree, but the father wants the child to have his name, the father may apply to court to establish his parentage and ask for a change in surname. Before making any name change, 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 consent to their change in surname. If these conditions are satisfied, the court may order the surname to be the surname of either parent, or the hyphenated surname referred to previously.

The Vital Statistics Agency handles birth registrations
For more information, call the Vital Statistics Agency at 604.660.2937 in the Vancouver area, 250.952.2681 in the Victoria area, 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 the father have to consent to the adoption of his child?
Say an unwed mother wants her child adopted by another family. In this case, BC’s Adoption Act says that the consent of the natural 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 circumstances justify not giving the father notification.

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

Does an unwed mother automatically get custody of her child?
No. Unless there’s an agreement or court order, the Family Relations Act governs the legal authority over children of unwed parents. But to understand what the Act says, you need to understand what “guardianship” means.

Guardianship is sort of like custody
Guardianship over the child’s “estate” means legal authority to make decisions and deal with the child’s property. Guardianship over the child’s “person” means the authority to sign the child up for school, get the child medical treatment, and the like. The type of guardianship unwed parent have depends on their relationship with each other:
 

• If the unwed parents still live together, they have joint guardianship.
• If the parents used to live together but are now separated, they share joint guardianship over the child’s estate, but the parent who lives with the child has sole guardianship over the child’s person. 
• If the parents never lived together, the parent who lives with the child (usually the mother) has sole guardianship of both the child’s person and estate.

For custody, you need a court order or agreement
Custody often includes guardianship. But it relates more to which parent the child lives with and when. Parents can negotiate an agreement for custody. As well, any person can apply for an order of custody. That might include parents, step-parents, extended family members, or anyone who can show a connection to the child.

How does the court decide custody?
The court considers the child’s best interests. Custody of a child of unwed parents is usually decided in the same way as when a legally married couple breaks up. The court can order joint custody, or sole custody to either parent. Where the child spends equal time with both parents, obviously joint custody would follow. But joint custody may also be given where the child lives primarily with one parent, if the mother and father demonstrate that they can truly co-parent – that is, they can work as a partnership in raising the children. In fact, sometimes the court will force the parents to try, because co-parenting arrangements, if they can possibly work, are generally considered to be in the best interests of the child.

For more information on child custody, refer to script 142 on “Custody, Guardianship and Access.”

Can you get child support for a child born outside marriage?
Each parent is legally responsible for the financial support of their child or children. Step-parents may also be responsible, even if one or more of the biological parents are paying. “Step-parent” is defined by the Family Relations Act. It can include a partner of either sex who lived with the biological parent, regardless of whether they were legally married to that parent, or even whether they had a meaningful relationship with the child. As well, guardians may also be responsible for child support, for example, where someone other than a parent had applied for an order of guardianship or agreed to act as guardian.

For more information on child support, refer to script 117 on "Child support” and script 147 on “About the Children in your Family.”

What are the inheritance rights of children born outside of marriage?
The rights depend on whether or not the parent or person made a will, and the child’s relationship to that person:

• If a person makes a will leaving all or part of their estate to “my children,” this means all their biological or adopted children. Any child of theirs born outside of marriage would be treated the same as a child born within marriage. However, step-children would not be included. So if you consider a non-biological, non-adopted child as your own, you must identify that child specifically in your will. As a practical matter, if it’s not generally known – and particularly if your chosen executor doesn’t know – who your biological or adopted children are, they should all be named and listed in your will.
• If a parent makes a will and treats any natural children (born inside or outside marriage) and adopted children differently from each other, an application can be made under the Wills Variation Act to change the affected child’s share of the estate. A parent who wants to distribute their estate unequally among their children should consult a lawyer and state acceptable reasons in their will to minimize the chances of a successful challenge later being made under the Wills Variation Act.
• If a parent dies without leaving a will, then the Estate Administration Act dictates how the estate will be split among the surviving spouse and children. A child born to a common-law relationship or unwed parents would receive exactly the same share as a child born inside marriage.

[updated November 2008]

Dial-A-Law© is a library of legal information that is available:

• by phone, as recorded scripts, and
• by audio and text, on the CBA BC Branch website.

To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia.

© Copyright 1983-2008 Canadian Bar Association, British Columbia