The provincial Family Law Act defines spouse as including married spouses and unmarried couples, provided that the unmarried couple has lived together in a "marriage-like relationship" for at least two years, or lived together for less than two years if they have had a child. Because the federal Divorce Act only applies to married spouses, all of the rules that apply when unmarried relationships end are found in the Family Law Act.
This section talks about qualifying as unmarried spouses, the consequences of being in a spousal relationship, and unmarried spouses' entitlement to government benefits. This section also talks about the legal issues involved when a relationship breaks down. The next section in this chapter, Other Unmarried Relationships, talks about couples in unmarried relationships who don't qualify as spouses.
- 1 Introduction
- 2 Qualifying as an unmarried spouse
- 3 Rights and responsibilities of unmarried spouses
- 4 Government benefits
- 5 Resources and links
The legal rights and responsibilities people in an unmarried relationship owe to each other, and the government benefits to which they might be entitled, are described in a number of different laws, and these different laws have different definitions of what it means to be a "spouse"; a couple might meet the test under one law but not the test under another.
Although married couples are always married spouses, unmarried couples aren't always unmarried spouses. For example, the federal Income Tax Act defines "spouse" as including people who have cohabited for one year, while the provincial Employment and Assistance Act defines "spouse" as including people living together for three months if the welfare caseworker believes that their relationship demonstrates "financial dependence or interdependence, and social and familial interdependence."
Regardless of a couple's federal or provincial status under these rules, it is not true that being an unmarried spouse or common-law partner, the expression used in a number of federal laws, means that you are legally married. Being married involves a formal ceremony and certain other legal requirements like a marriage license. Without that ceremony and that license, unmarried spouses will never be married, no matter how long they've lived together.
For most provincial laws, the question is whether or not a particular couple are "spouses." Qualifying as a spouse might mean that you are entitled to the family rate for MSP, that you can share in your spouse's estate in the event your spouse dies, or that you are no longer entitled to social assistance.
In general, for most but not all provincial laws, you must have lived with your partner for at least two years to qualify as a spouse. (The laws about sharing in a spouse's property after their death also require you to have been living together at the time of your spouse's death.) Here's the definition of "spouse" from the Wills, Estates and Succession Act:
[...] 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship for at least 2 years.
Here's the definition from s. 3 of the Family Law Act:
(1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 and 6, has a child with the other person.
(2) A spouse includes a former spouse.
And here's the definition from the Adult Guardianship Act:
"spouse" means a person who
(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or
(b) is living with another person in a marriage-like relationship;
As you can see, there are subtle differences between these definitions, and it can be very important to find out just how a particular law defines spouse.
Most federal laws distinguish between "spouses," people who are legally married, and "common-law partners," who aren't. Qualifying as a common-law partner might mean that you are entitled to a share of your partner's CPP credits, receive the Old Age Security spouse allowance or survivor's benefits, or the spouse amount for the GST Credit.
In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from the Old Age Security Act:
"common-law partner", in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.
Here's the definition from the Income Tax Act:
"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and
(a) has so cohabited throughout the 12-month period that ends at that time, or
(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),
and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of least 90 days that includes the particular time because of a breakdown of their conjugal relationship.
"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship."
Family law in British Columbia doesn't talk about people who are "common-law spouses" and never has. Once upon a time, people could marry each other and create a legal relationship simply by agreeing to marry, without getting a licence from the government or having a particular kind of ceremony. Because the rights between the spouses came from principles established by the common law, these were known as common-law marriages. Common-law marriages were valid in England until the Marriage Act of 1753, better known by its full flowery name, An Act for the Better Preventing of Clandestine Marriage.
Normally I wouldn't make a fuss about terminology like this, except that the phrase "common-law spouses" kind of suggests that there are certain rights and entitlements that a couple get from the operation of the common law, and this really isn't the case and it hasn't been the case for two-and-a-half centuries. What's really important is whether a couple are "spouses" under the particular law that they're looking at; all of their rights and entitlements come from the operation of a statute.
There is no such thing as a "common-law spouse" or a "common-law marriage" in British Columbia. If you're not married but you're a "spouse," it's because of s. 3 of the Family Law Act.
Qualifying as an unmarried spouse
It's usually pretty hard to argue that you're not married if you're a married spouse. It's a lot easier for unmarried couples to argue about the status of their relationship, and the stakes can be quite high. If a couple were just roommates, for example, neither of them will be able to ask for a share of the family property or for a contribution to the family debt, and neither will be able to ask the other to pay spousal support.
This requirement of an unmarried spousal relationship is fairly self-explanatory. An unmarried couple who have lived together and had a child together are spouses who are eligible to ask for spousal support, regardless of how long or how short a period of time they lived together. An unmarried couple who have lived together for at least two years are spouses who are eligible to ask for spousal support and orders about the division of property and debt.
The only thing that needs to be pointed out is that the two-year period doesn't need to be continuous. On the other hand, if a claim is based on the parties being unmarried spouses, the court will probably look at the nature of the relationship in more detail. A gap of three months in the middle of the two years a couple are supposed to have lived together might prevent someone from claiming that a couple are spouses; on the other hand, if the three months' absence was because someone was working out of town, the three months may not matter very much.
...In a "marriage-like relationship"
This is more complex than the calculation of the duration of a relationship, partly because it calls for the court to make a decision about the nature of the parties' private, personal relationship with one another. In a 1998 case called Takacs v. Gallo, 1998 CanLII 6428 (BCCA) our Court of Appeal endorsed these considerations:
Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?
- Sexual and Personal Behaviour:
Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings towards each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?
What was the conduct and habit of the parties in relation to the preparation of meals, washing and mending clothes, shopping, household maintenance, and other domestic services?
Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties? What was the attitude and conduct of the community toward each of them and as a couple?
- Economic Support:
What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them that both agreed would be a determinant of their overall relationship?
What was the attitude and conduct of the parties concerning children?
In a nutshell, where the "marriage-like" quality of a relationship is disputed, the court will enquire as to how the couple represented themselves to their family and friends, and as to the nature of their financial relationship and household relationship. Did the couple present themselves as a family unit and conduct their personal affairs as a family unit? The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, Yakiwchuk v. Oaks, 2003 SKQB 124, expressed the difficulty of determining what is and what is not a "marriage-like" relationship this way:
"Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property — in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important — for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their 'spouse' by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some 'spouses' do everything together — others do nothing together. Some 'spouses' vacation together and some spend their holidays apart. Some 'spouses' have children — others do not. It is this variation in the way human beings structure their relationships that make the determination of when a 'spousal relationship' exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist."
To be clear though, mere roommates will never qualify as unmarried spouses. There needs to be some other dimension to the relationship indicative of a commitment between the parties and their shared belief that they are in a special relationship with each other.
An unmarried spouse who has a child can face a claim for child support until the child reaches the age of 19, and possibly longer. Child support is mostly about being a parent not being a spouse.
However, there are three important things you need to know about claims for spousal support and claims for child support against stepparents:
- A claim for child support against a spouse who is a stepparent must be brought within one year of the stepparent's last contribution to the support of the child, and cannot be brought until after the spouses have separated.
- An unmarried spouse must bring a claim for spousal support within two years of the date of separation.
- An unmarried spouse must bring a claim for the division of property and debt within two years of the date of separation.
Bringing a claim means starting a court proceeding asking for a particular order, not the date when the first application is made in that proceeding.
The date of separation is the date when one or both spouses realize that their relationship is over, says so, and ends the "marriage-like" quality of the relationship. As a result, the "marriage-like" quality of a relationship can terminate before a couple physically separates, and the time limits will usually begin to run from that date rather than the date someone moves out.
Effect of dispute resolution processes
Under s. 198(5) of the Family Law Act, the running of the time limits "is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." The purpose of this provision is to allow people to engage in dispute resolution without having to feel pressured into starting a court proceeding to stop a time limit from running out. However, this provision isn't as straightforward as it looks.
First, the parties have to be engaged in a process of family dispute resolution. That term is defined in s. 1 of the act as including:
- the services of a family justice counsellor,
- collaborative settlement processes, and
You'll notice that negotiation isn't on this list. As well, under the Family Law Act Regulation, a process of mediation and arbitration requires the execution of a mediation agreement or an arbitration agreement to count as mediation or arbitration under s. 1.
Second, the parties have to be engaged in one of these processes with a family dispute resolution professional. This term is defined in s. 1 of the act as including:
- family justice counsellors,
- mediators who meet the training requirements set out in the Family Law Act Regulation, and
- arbitrators who meet the training requirements set out in the Family Law Act Regulation.
In other words, being engaged in a family dispute resolution process with someone like a community leader, an elder, a senior family member, a priest, an imam or a rabbi won't cut it unless the person also happens to fit into the definition of family dispute resolution professional.
Third, the parties must be engaged in the family dispute resolution process. That implies a process that is continuing and underway, rather than one that was started but never followed-through with.
Effect of attempts to reconcile
The Divorce Act talks about how the one-year period a married couple must usually wait in order to get divorced is not interrupted if the parties live together in an attempt to reconcile for less than 90 days. Similar language is used in the Family Law Act for the purpose of determining the date when a couple stops accumulating family property. Neither of these provisions apply to the two-year time limit for bringing claims under the Family Law Act.
Rights and responsibilities of unmarried spouses
Provided a couple qualify as spouses, either one of them is entitled to seek an order for spousal support under the Family Law Act or to ask for an order that a stepparent pay child support for the benefit of the child of a spouse. The rules that apply to an unmarried spouse's claim for spousal support or for child support from a stepparent are exactly the same as those that apply to married spouses.
An unmarried couple who have lived together for at least two years can also ask for an order about the division of property and debt. The rules that apply to an unmarried spouse's claim for the division of property and debt are exactly the same as those that apply to married spouses.
If an unmarried couple has had a child together, they are parents who are entitled, just because they are parents, to ask for orders about the care of the child and for child support. The rules that apply to determine guardianship, the distribution of parenting arrangements and contact are exactly the same as they are for any other parents, including parents who are married.
The fact that a couple live together may entitle one or both of them to certain benefits paid by the federal or provincial government if they also qualify as spouses or common-law partners under the applicable rules and legislation. It can also expose them to the prospect of losing those benefits, most notably social assistance payments.
The ministry that administers the Employment and Assistance Act and is responsible for social assistance often treats anyone living together as a couple as being in a spousal relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under what's known as the "spouse in the house" rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually return to treating you as single.
EI applies the same standards to unmarried spouses as it does to married spouses.
Canada Pension Plan
Unmarried spouses may share in each other's accumulated CPP credits, however this sharing is not automatic. You must apply to equalize your CPP credits with your spouse's CPP credits.
There may be positive income tax consequences if you elect to share a CPP pension that is being paid out. You will be eligible to share your pension if you have been living together as a couple for at least one year and you are both at least 60 years old.
Old Age Security Pension
The Old Age Security Pension is available to people who are at least 65 years old. You may be entitled to receive the amount for a couple rather than for two single people, as well as other benefits like the spouse allowance and survivor's benefits, if you have been living together as a couple for at least one year.
MSP and medical and dental benefits
The Medical Services Plan will cover your partner on your plan without any minimum limit on the length of time you've been living together, although you must have signed your partner up on the plan and must pay the family rate rather than the single rate.
If you or your partner receive any workplace medical or dental insurance coverage, check with the plan administrator to see if unmarried couples are eligible beneficiaries under your plan.
ICBC death benefits
A surviving unmarried spouse can apply to receive death benefits from ICBC when the other spouse is killed in a car accident, regardless of whose fault the accident was.
- Family Law Act
- Divorce Act
- Income Tax Act
- Wills, Estates and Succession Act
- Adult Guardianship Act
- Old Age Security Act
- Employment and Assistance Act
- Canada Pension Plan
- Legal Services Society's Family Law Website: Property issues and common-law relationships
- Canada Pension Plan Survivor's Pension
- Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Wright and Michael Sinclair, July 30, 2018.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship."
In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage" and "spouse."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
Someone who is a spouse by the operation of a statute. Under the Family Law Act, unmarried spouses are people who have lived together in a marriage-like relationship for at least two years, or, for all purposes of the act other than the division of property or debt, who have lived together for less than two years but have had a child together. See "marriage-like relationship," "marriage" and "married spouse."
An act; a statute; a written law made by a government. See "regulations."
In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.
Something which can be owned. See "chattels" and "real property."
In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent."
The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec.
An act, legislation; a written law made by a government.
A popular misconception under which people are believed to be married simply by living together; a popular misnomer describing the legal relationship between long-term cohabitants. Common-law marriages have never been lawful in British Columbia. See "common-law marriage," "married spouse" and "unmarried spouse."
A form of marriage without government or church licence, and often without ceremony, in which a couple acquired certain rights and obligations toward each other under the common law, banned as a result of the 1753 English Marriage Act. Common-law marriages have never been lawful in British Columbia. See "unmarried spouse."
A person who is validly married to another person as a result of a ceremony presided over by someone with the authority to conduct marriages. See "marriage" and "unmarried spouse."
A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property."
A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.
Money paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship.
A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
In law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact."
The highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal."
A legal right to have and use a thing that is enforceable in court. See "possession."
A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.
In law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order."
Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.
The spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and the care and control of a child under both the Divorce Act and the Family Law Act. See "parent" and "spouse."
In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of."
A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.
A mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration."
In law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action."
The processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation.
Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."
A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."
A family of dispute resolution processes in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution."
A dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and is binding on the parties. See "alternative dispute resolution" and "family law arbitrator."
In family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements."
A provincial regulation that prescribes the training necessary to work as a family law mediator, a family law arbitrator and a parenting coordinator, and adapts the federal Child Support Guidelines for the purpose of the Family Law Act. See "Child Support Guidelines" and "Family Law Act ."
A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."
A term under the Family Law Act that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."