Children Born to Unmarried Spouses (No. 147)

This script discusses issues relating to the children of unmarried parents who qualify as spouses. The topics discussed include:

• Who is a spouse
• child support
• guardianship and the care of children
• adopting a child or your spouse’s child
• safety concerns

Who is a “spouse”?

Under the provincial Family Law Act, the term “spouse” includes:

• people who are married to each other;
• people who have lived together in a marriage-like relationship for at least two years; and,
• people who have lived together in a marriage-like relationship for less than two years, but have a child together. (Note: this category of spouses do not have rights to division of property, debt and pension).

Does an unmarried spouse have to pay child support?

The unmarried parents of a child, whether they’re spouses or not, each have a legal responsibility to support their child. This obligation lasts until their child reaches the age of majority, 19 in BC. They may also have to support their child after the age of 19 if the child is financially dependent on them because of disability or illness, or because the child is pursuing post-secondary education.

Does a step-parent have to pay child support for a stepchild?

A stepparent is a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life. Once a step-parent and the child’s parent are separated, a step-parent may have an obligation to pay child support for the step-child if:

• the stepparent contributed to the support of the child for at least one year, and
• the claim for child support is made against the step-parent within one year of the stepparent’s last contribution to the support of the child

The stepparent's obligation to pay child support is secondary to that of the child's parents and guardians, and extends only as appropriate on consideration of a number of factors. The rules on child support are a bit different for stepparents, and it is best to consult a lawyer to find out more

To find out more about child support upon separation, go to script 117 on “Child Support”.

How are the children cared for if you break up?

If you and your spouse cannot decide who the children should live with or how their time should be shared, then a mediator can help you decide, or a judge will make a decision according to what’s in the best interests of the children. The court can also make decisions about how often the children will see each parent (called parenting time or contact) and how parenting decisions about the children will be made (called parental responsibilities). For more information, refer to script 140 on “Children Born outside Marriage” and script 142 on “Custody and Access, Guardianship, Parenting Arrangements and Contact”.

Can unmarried spouses adopt a child?

Unmarried spouses have the same rights as married spouses to adopt a child. Refer to script 145 on “Adoption” for more information on this topic.

What if you want to adopt your spouse’s child?

You can only adopt your spouse’s child if the child’s other parent is prepared to give up his or her rights. If the other parent agrees, you can adopt your spouse’s child. It’s important to know that when you adopt a child, you get all of the obligations of a parent of the child, including the obligation to pay child support and contribute to the cost of the child’s expenses. Note that a child who is 12 years old or older must agree to be adopted and has to give consent. There are circumstances under which the consent of the parents is not required; refer to script 145 on “Adoption” for more information on this topic.

What if you want to place your child for adoption?

Usually both parents have to agree to the adoption. Before a court will make an adoption order, the judge must be satisfied that the other parent has been told about the adoption and has been given an opportunity to say whether he or she agrees. For more information, refer to script 145 on “Adoption”.

What rights do you have to be kept safe from an abusive ex-spouse?

If you or your children are being threatened by your former spouse, you can apply for a protection order under the Family Law Act and you can file a report with the police. You can get a court order saying that your spouse must stay away from you and your children. If your spouse breaks this order, he or she can face criminal charges. For more information, refer to:

• script 217 on “Applying for a Peace Bond and Filing Assault Charges”
• script 155 on “Family Violence”
• script 156 on “Reporting Suspected Child Abuse”

Can you use your spouse’s last name?

Yes. In fact, you can call yourself any name you choose, so long as you don’t do it to break the law or to cheat anyone. However you won’t be able to get government identification documents in any name other than your legal name. You can apply for a legal name change if you wish. For more information, refer to script 161 on “Changing Your Name”.

Can your children use your spouse’s last name?

You can also use whatever last name you want for your children. You can apply to legally change the children’s last name to your spouse’s last name, as long as your spouse does not mind. The Director of Vital Statistics can process a change of name for your children even if the children’s other parent doesn’t consent, but you have to convince the Director that the children’s names should be changed. Children over the age of 12 also have to agree to the legal change of their name.

For more information on this, see the Vital Statistics Agency’s website at www.vs.gov.bc.ca, or call the main office in Victoria at 250.952.2681.

Where can you get help or more information?

• Family Justice Counsellors in Family Justice Centres throughout BC can help you with custody, child support, and related issues. Their services are free. Call 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria, or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you.

• See the Family Justice website.

• Read the booklet “Living Together or Living Apart: Common-law Relationships, Marriage, Separation, and Divorce” by the Legal Services Society of BC and available free on their website at www.legalaid.bc.ca. To find it, click “Our publications” then under “I want to find a publication by subject” click “Family law”.

• See the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca — under “Your legal issue,” click “Common-law relationships”.

• Visit the wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC.

[updated May 2017]

The above was last reviewed for legal accuracy by Zahra H. Jimale.

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