Interpretation of “regularly cares for” under the Family Law Act

Last revised September 02, 2025

Section 39 of the Family Law Act sets out rules for when parents are and are not guardians of children. Under s. 39(3) a parent who has never resided with the parent’s child is presumed not to be a guardian of the child unless they can show one of the following:

(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;  

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;  

(c) the parent regularly cares for the child.

The phrase “regularly cares for” is not defined in the Family Law Act, but there is some case law considering what it means to regularly care for a child. The most prominent case is A.A.A.M. v British Columbia (Director of Adoption) 2015 BCCA 220 at para. 63 where the court gave the following guidance:

I doubt that a visit once every calendar year could be intended to qualify as ‘regular’ for purposes of s. 39(3)(c), even though it could be said to have taken place at regular intervals. It seems to me that the intention of the Legislature was 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 fact. Certainly, it connotes something more than simply ‘visiting’ the child, even at regular intervals.

Subsequent cases have cited and applied the A.A.A.M. v British Columbia (Director of Adoption) guidelines: 

M.A.B. v J.A.B, 2023 BCSC 1276 

The core question under s. 39(3)(c) has thus been construed as whether the applicant parent has shown a willingness to provide for the child’s ongoing needs “usually” or “normally”, that is, more than simply visiting the child at regular intervals: Doyle v. Handley, 2018 BCSC 293 at para. 38; see also L.P. v. A.E., 2023 BCSC 429 at para. 37. This is in my view consistent with A.A.A.M., where Justice Groberman dissented in the result but agreed with the majority that “the phrase ‘regularly provides care’ focusses on the nature and frequency of the parent’s caregiving rather than on its periodicity": para. 79. 

 S.G. v. G.M., 2020 BCSC 975 

Judge Cleaveley held that G.M. falls within the definition of "regularly cares for the child", in that G.M.: 

[33]     …has very clearly demonstrated a continuing willingness to provide for the child and a history of doing so and, as I said earlier, had he been given more of an opportunity, I am satisfied that he would have been more involved.

F.S. v C.O., 2015 BCPC 416 

Under s. 39(3)(c) of the Family Law Act, one basis for awarding guardianship is where, although the parents have not lived together, the father or the other parent has regularly cared for the child.  I cannot read that statutory provision, such that a mother's unreasonable refusal to allow a father regular access so as to "regularly care for the child" should be allowed to defeat a biological father's application for guardianship when they meet all other criteria.

Content reviewed July 9, 2025