Under section 39(3) of BC’s Family Law Act, a parent who has never resided with his or her child is not that child’s guardian unless: (1) there is an agreement stating otherwise; or (2) the court finds that parent regularly cares for the child.
What does it mean to “regularly care” for a child?
The BC Court of Appeal examined the issue in A.A.A. M. v. British Columbia (Director of Adoption), 2015 BCCA 220. The court found that “regular” usually implies regular intervals; however, the Legislature’s intent was broad and meant to “refer to a parent who has demonstrated a continuing willingness to provide for the child’s ongoing needs and a record of ‘usually’ or ‘normally’ doing so.”
In other words, irregularity may be acceptable if there is a real willingness. Of course, each case must be examined on its own facts.
In A.A.A. M., the court took the parent’s personal circumstances and barriers into account when deciding what constituted regular care. Here, the Ministry restricted access options, the child resided in another province, and the parent had limited resources for travel and legal advice. In other words, very real barriers to regular care existed. However, the parent took part in parenting classes with and without the child and consistently attempted to assert guardianship through contact with the Ministry. The non-guardian’s demonstrated willingness was held to constitute regular care in this particular circumstance.
If no circumstantial barriers exist, the court has been stricter with what constitutes “regular care.” In F. (S.J.) v. N. (R.M.), 2013 BCSC, weekly visits followed by a 3 week interruption was not found to be sufficiently regular.
If you are a non-guardian parent and you do not regularly care for your child, you can still apply to the court to be appointed as a guardian under s. 51. The court will consider whether such an appointed is in the best interest of the child.