How can you become a child's guardian?

The BC Family Law Act defines guardians as the people responsible for:

  • caring for and bringing up a child, and
  • making decisions about that child.

Who can be a guardian?

When parents live together, they're both guardians of their children, even if they're not married. This means they share responsibility for their children's care and upbringing.

If the children's parents stop living together, both of them are still the children's guardians. It doesn't matter who moves out or who the children live with.

If a parent has never lived with their child, they're still a guardian if:

  • they've taken care of their children regularly,
  • there's an agreement or court order that says they're a guardian, or
  • the other parent dies and they're named as a guardian in the will.

A parent who isn't a guardian can become one if they're named as a guardian in:

  • a court order,
  • an agreement (if there's no prior court order), or
  • a will.

A person who isn't a parent can become a guardian only by court order or under a will. They can't become a child's guardian just because someone puts it into an agreement.

Once a person is named as a guardian, they'll always be a guardian unless:

  • a court order takes away their right to be a guardian, or
  • both parents agree that one of them will no longer be a guardian.

See Guardianship: Parenting time and parental responsibilities for more information about this.

Who can apply for a court order to become a guardian?

Anyone can apply to the court to become a guardian. For example:

  • parents who aren't guardians
  • grandparents
  • step-parents (step-parents don't automatically become guardians no matter how long they live with a child)
  • adult siblings (brothers or sisters)
  • other family members
  • people who aren't family members

The court is very careful about deciding who can be a guardian. It doesn't matter who the person is and what their relationship to the child is.

The Extended Family Program might be able to help you if you want to look after a relative's or friend's child for a while because:

  • the Ministry of Children and Family Development is involved with their family,
  • you don't want their children to go into foster care, and
  • you're not a guardian and you don't plan to become a guardian.

Before you apply to become a guardian, see Temporary & Permanent Care Options for Kids and Teens in BC.

How do you apply?

To apply for guardianship, you need to file:

  • an application to get a family order in either Provincial or Supreme Court, and
  • a special guardianship affidavit.

Get a family order

First you need to decide whether you'll apply to Provincial or Supreme Court. Then follow one of our step-by-step guides:

Supreme Court:

Provincial Court:

These guides are most commonly used by separating couples, but the process for getting an order to become a guardian is much the same. The other party in your case is usually the parent(s) or current guardian(s) of the child you want to be guardian of.

Fill out the special guardianship affidavit

You'll also need to fill out an affidavit: Form 5 if you're applying in Provincial Court, and Form F101 if you're applying in Supreme Court.

The first step is to get three background checks done:

File these last two forms along with your application for a family order. You can start the process for getting a family order and file the affidavit later on when the record checks are complete.

The background checks may take a while. Check in regularly with the court registry to see whether the record checks are complete and filed (received by the court). You need to keep checking because there are important deadlines. When the record checks are ready, you'll get copies.

In the affidavit, you need to include information about:

  • the nature and length of your relationship with the child (that is, how you're connected to the child and how long you've known each other)
  • where the child's living right now
  • your plans for how you're going to care for the child
  • any other children in your care
  • any history of family violence in the child's family
  • any family or child protection court proceedings you've been involved in

When the three records checks are complete, attach them to the affidavit as exhibits. You'll need to swear or affirm the affidavit — see Who can swear an affidavit? You can also do this at the court registry when you go to file the affidavit.

Deadlines for Provincial Court

  • Your records checks must be dated no more than 60 days before you file your affidavit (Form 5).
  • You must serve the filed affidavit along with the records checks to the other party at least seven days before the date of your hearing.

Deadlines for Supreme Court

  • Your records checks must be dated no more than 60 days before the date of your hearing.

Can you get a temporary order without the affidavit?

You can get an interim (temporary) guardianship order if the judge is satisfied that it would be in the child's best interests.

You can apply for an interim order if:

  • you need to get an order quickly, and
  • you can't wait to get all your background checks done first.

In Provincial Court, you can ask for this at the Family Management Conference. This order lasts for no more than 90 days. During this time:

  • get your background checks done, and
  • fill out and file the guardianship affidavit.

Who can help?

Family duty counsel can help you with your application. They're lawyers Legal Aid pays to help people with lower incomes with their family law matters.

They can give you free legal advice. But they can't take on your whole case or represent you at trial.

For more information, see our page Tips about getting legal help.

Updated on 9 July 2024