Guardianship Case: Our client was in a relationship. He was not married and his girlfriend became pregnant. Unfortunately the relationship ended before their child was born. Since they were not a couple when the child was born, she would not allow him access to their child stating that our client was not a guardian.
Our client asked: “My ex says I am not a guardian of my biological child. She will not allow me to regularly care for my child in attempt to not allow me to become a guardian. What does this mean? What can I do?”
In M. (A.A.A.) v. British Columbia (Children and Family Development), 2015 BCCA 220, the court broadly considered the parentage and guardianship provisions of the Family Law Act in a complicated family scenario. The biological mother of the child signed a consent to adoption, making the respondent director of adoption, a “guardian” of the child under the Family Law Act. The child’s biological father commenced proceedings, originally seeking “custody” under the Family Relations Act, but later amended to seek guardianship under the Family Law Act. The trial judge held that the biological father was not a guardian under s. 39(3) of the Family Law Act because of a finding of fact—that he did not “regularly care for the child”. The court found that the trial judge had erred in her application of s. 39(3)(c), as that provision was intended to refer to a parent who had demonstrated a continuing willingness to provide for the child’s ongoing needs and a record of doing so. In this case, the biological father intended to care for the child and did all he could reasonably have done in the circumstances.
In a Provincial court of British Columbia, it was successfully argued that the mother was not allowing the father to “regularly care” for the child in attempt to not allow him to be deemed a guardian under section 39(3)(c) of the Family Law Act. Our client was ultimately declared a guardian.
To learn more about guardianship or to discuss your specific situation, please contact one of our experienced lawyers at 604 265 8400.