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Having Children with Assisted Reproduction

2019-04-18T05:05:18Z

Michael Sinclair:

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}

Once upon a time, not all that long ago in fact, sex was the only way to have a child. Sometimes, however, a child was not the participants' desired outcome and rules were developed to help the courts figure out who a child's father was when paternity was denied.

These days, with the help of technology, it's possible for a couple who want a child to have that child using donated eggs or sperm or with the help of a surrogate mother. The question now is less often about who isn't a parent than who is.

This section talks about assisted reproduction and the rules that determine who is a parent under the ''[[Family Law Act]]'' when parentage is denied, and when a child has been conceived through assisted reproduction.

==Determining parentage==

Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 24 says this:

<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>
<blockquote><blockquote><tt>(a) a person is the child of his or her parents,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote>
<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>

Section 26(1) says who a child's parents are presumed to be:

<blockquote><tt>On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.</tt></blockquote>

Now it's usually quite obvious who the birth mother of a child is. It not always evident who the biological father is. A paternity test will resolve any uncertainty as to whether a particular man is the father of a particular child, and with today's technologies, the odds of an incorrect result are on the order of a thousandth of one percent. For a father, proving paternity can be essential to establishing a right to be involved in a child's life. For a mother, proving paternity can be an essential step in securing a child support order.

===The presumptions of fatherhood===

Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother.

Under s. 26(2) of the ''[[Family Law Act]]'', a man is presumed to be the biological father of a child in one of the following circumstances:

<blockquote><tt>(a) he was married to the child's birth mother on the day of the child's birth;</tt></blockquote>
<blockquote><tt>(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended</tt></blockquote>
<blockquote><blockquote><tt>(i) by his death,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by a judgment of divorce, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) as referred to in section 21;</tt></blockquote></blockquote>
<blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote>
<blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote>
<blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act</tt></blockquote>

Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a parentage test be conducted. Without challenging these presumptions, however, the man will likely be required to pay child support for the benefit of the child.

===Parentage tests===

Under s. 33(2) of the ''[[Family Law Act]]'', the court may

<blockquote><tt>order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests</tt></blockquote>

Under s. 33(1) a parentage test can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:

*'''Human leukocyte antigen tests:''' Human leukocyte antigen tests are a kind of advanced blood test that looks at the genetic markers on white blood cells to determine the likelihood that the child's antigens were inherited from a particular man. Their accuracy is northward of 96% but can be spoofed if the purported father has had a recent transfusion.
*'''Deoxyribonucleic acid tests:''' DNA tests look for overlaps in the child's unique genetic code with the genetic code from the purported father and the child's mother. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that the test is wrong are about 0.0001%. Testing is performed on biological samples, most commonly blood samples. It is possible to have tests conducted based on mouth swabs.
*'''Chorionic villi sampling:''' This is a prenatal procedure that can be performed during the 10th to 13th week of pregnancy. It consists of a DNA test on a sample of the baby's placenta. It is an unpleasant procedure that must be conducted either through the mother's cervix or her abdominal wall.
*'''Amniocentesis:''' This is a prenatal procedure that can be performed during the 14th to 24th week of pregnancy. It consists of a DNA test on a sample of amniotic fluid drawn through the mother's abdominal wall.

The DNA of a child is a combination of the DNA of the child's mother and father. DNA tests compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Because of the accuracy of DNA testing, a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, I don't recommend that you challenge the results of a DNA test. Save your money.

A number of companies in British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs], [http://www.thednalab.com Maxxam Analytics] and [http://www.pro-adn.com Orchid PRO-DNA], will perform paternity tests at a cost of between $400 and $800 plus taxes.

===Arranging for a parentage test===

If the mother and the purported father agree to have a paternity test conducted, no order of the court is necessary. You simply contact the appropriate company and arrange to have blood or saliva samples taken and tested. The results will be delivered to you directly. These companies even offer home sampling kits at a somewhat lower rate.

Where the parties don't agree to a test, one of them, usually the alleged father, must make an application to court for an order that samples be taken from the parties and the child and that a paternity test be conducted under s. 33(2) of the ''Family Law Act''. Under s 33(3), the court can also make an order about who must pay for the cost of the test.

==Assisted reproduction==

Assisted reproduction relies on the assistance of, and often genetic contributions from, other people to create a child. It is necessary when:

*a single person wants to have a child,
*one or both people in an opposite-sex relationship are infertile or the woman is unable to carry a baby to term,
*a couple in a same sex relationship want to have a child and they want the child to share in the genetic heritage of at least one of them, or
*a couple wish to include another person as the parent of their child.

Whatever circumstances are at hand, assisted reproduction inevitably involves of one or more of:

*the use of donated eggs,
*the use of donated sperm, and
*the cooperation of a woman who will carry the baby to term.

The 2004 federal ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' regulates the scientific and commercial aspects of assisted reproduction. From a family law perspective, the important parts of this act make it illegal to sell eggs or sperm, and say that a surrogate mother can't be paid for her services but she can be compensated for her expenses.

The provincial ''[[Family Law Act]]'' lets people make agreements when they are having a child by assisted reproduction that say which of the parties to the agreement will and won't be a legal parent of the child. Under the act, a child can have up to five parents if everyone agrees: up to two people who intend to have the child; an egg donor; a sperm donor; and, a surrogate mother.

===Donors===

Under s. 24 of the ''Family Law Act'' the donor of eggs or sperm is not the parent of a child merely because of the donation, and may not be declared to be a parent of a child. This section is very important. It means that a person can donate eggs or sperm without worrying that they will be asked to pay child support down the road.

A donor can be a parent if the intended parents and the donor sign a written assisted reproduction agreement before the child is conceived that says that the donor will be a parent. Donors who are parents under an assisted reproduction agreement are parents for all purposes under the ''Family Law Act''; they are presumed to be the guardians of a child and may be required to pay child support for the benefit of the child.

===Surrogate mothers===

A surrogate mother is a birth mother who is presumed to be the parent of a child under ss. 26 and 27 of the ''Family Law Act''. However, a surrogate mother will not be a parent if the intended parents and the surrogate mother sign a written assisted reproduction agreement before the child is conceived that says that the surrogate mother will not be a parent.

Without an assisted reproduction agreement, the child's parents will be presumed to be the surrogate mother and the child's biological father, and the surrogate mother will be a parent for all purposes under the ''Family Law Act''.

===Assisted reproduction after death===
====What happens if the donor dies?====
People who aim to have children by assisted reproduction ― including through ''in vitro'' fertilization when no one other than the intended parents are involved ― often freeze eggs, sperm and embryos for future use. This is especially common where multiple attempts may be necessary to have a successful pregnancy. It sometimes happens that one of the people who provide the genetic material dies before a child is conceived.

Section 28 of the ''Family Law Act'' says that when the donor dies before the child is conceived and there is proof that the donor:

*consented to the use of the genetic material or embryo by their married or unmarried spouse,
*consented to being the parent of a child conceived after their death, and
*did not withdraw their consent before death,

the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married or unmarried spouse.

====What happens if the intended parent dies?====
Sometimes circumstances can play out in unexpected ways. For instance, an intended parent designated under a surrogacy agreement may die before the child is born. As long as the child has been conceived, section 29 of the ''Family Law Act'' says that the intended parent will still be the parent in the eyes of the law, provided that:
* the surrogate mother gives her written consent to surrender the child to the executor or other person acting in the place of the deceased intended parents, and
*the executor or other person takes the child into their care.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]''
* ''[http://canlii.ca/t/84fk Vital Statistics Act]''

===Links===

* [http://www.genetrackcanada.com Genetrack Biolabs]
* [http://www.pro-adn.com Orchid PRO-DNA]
* [http://www.thednalab.com Maxxam Analytics]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}

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Adopting Children

2019-04-18T05:04:37Z

Michael Sinclair:

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child. At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic kinds of adoption: adoption within a family unit by a relative or stepparent, with the consent of the natural parent; and, adoption by a stranger through an agency. The first kind can be handled privately through the court process. The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act describes a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a ''direct placement'',
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including with respect to how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment they receive, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The ''Act'' also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The ''Act'' also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke their consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the Ministry for Children and Family Development's [http://redbookonline.bc211.ca/service/9493227_9493227/adoption_services Adoption Division] of their intent to adopt a child by filing a Form 1 of the [http://canlii.ca/t/859w Adoption Act Regulation] with the Ministry. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents that must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with their birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the stepparent) of the child loses their rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can access a summary of the process on the [https://www2.gov.bc.ca/gov/content/life-events/birth-adoption/adoptions/how-to-adopt-a-child BC Ministry of Children and Family Development website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in their community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what they consider to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with them to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the "Adoption Act" to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
After hours/text: 250-213-7718 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
301-1638 East Broadway 
Vancouver, British Columbia, V5N 1W1 
Phone: 604-736-4951 
Fax: 604-733-7009 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
620 Leon Avenue 
Kelowna, British Columbia, V1Y 9T2 
Phone: 250-763-8002 
Fax: 250-763-6282 
Text: 250-212-8366 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84g5 Adoption Act]''
* [http://canlii.ca/t/859w Adoption Act Regulation]
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

* [http://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/children-and-family-development Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/adoptions Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}

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Adopting Children

2019-04-18T05:00:56Z

Michael Sinclair:

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
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Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child. At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic kinds of adoption: adoption within a family unit by a relative or stepparent, with the consent of the natural parent; and, adoption by a stranger through an agency. The first kind can be handled privately through the court process. The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act describes a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a ''direct placement'',
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including with respect to how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment they receive, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The ''Act'' also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The ''Act'' also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke their consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the Ministry for Children and Family Development's [http://redbookonline.bc211.ca/service/9493227_9493227/adoption_services Adoption Division] of their intent to adopt a child by filing a Form 1 of the [http://canlii.ca/t/859w Adoption Act Regulation] with the Ministry. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents that must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with their birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the stepparent) of the child loses their rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can access a summary of the process on the [https://www2.gov.bc.ca/gov/content/life-events/birth-adoption/adoptions/how-to-adopt-a-child BC Ministry of Children and Family Development website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in their community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what they consider to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with them to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the "Adoption Act" to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
301-1638 East Broadway 
Vancouver, British Columbia, V5N 1W1 
Phone: 604-736-7613 
Fax: 604-736-7916 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
620 Leon Avenue 
Kelowna, British Columbia, V1Y 9T2 
Phone: 250-763-8002 
Fax: (250) 763-6282 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84g5 Adoption Act]''
* [http://canlii.ca/t/859w Adoption Act Regulation]
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

* [http://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/children-and-family-development Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/adoptions Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}}

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[[Category:JP Boyd on Family Law]]

2019-04-18T04:44:03Z

Michael Sinclair: Suspension of limitation periods for ADR

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}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.

==Introduction==

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 ''[http://canlii.ca/t/7vb7 Income Tax Act]'' defines "spouse" as including people who have cohabited for one year, while the provincial ''[http://canlii.ca/t/84l7 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.

===Provincial legislation===

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 ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'':

<blockquote><tt>[...] 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and</tt></blockquote>
<blockquote><blockquote><tt>(a) they were married to each other, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they had lived with each other in a marriage-like relationship for at least 2 years.</tt></blockquote></blockquote>

Here's the definition from s. 3 of the ''Family Law Act'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A spouse includes a former spouse.</tt></blockquote>

And here's the definition from the ''[http://canlii.ca/t/84gj Adult Guardianship Act]'':

<blockquote><tt>"spouse" means a person who</tt></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is living with another person in a marriage-like relationship;</tt></blockquote></blockquote>

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.

===Federal legislation===

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 ''[http://canlii.ca/t/7vjx Old Age Security Act]'':

<blockquote><tt>"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.</tt></blockquote>

Here's the definition from the ''[http://canlii.ca/t/7vb7#sec248 Income Tax Act]'':

<blockquote><tt>"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 </tt></blockquote>
<blockquote><blockquote><tt>(a) has so cohabited throughout the 12-month period that ends at that time, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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),</tt></blockquote></blockquote>
<blockquote><tt>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.</tt></blockquote>

"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship."

==="Common-law spouses"===

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.

===Living together...===

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 ''[http://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6428 (BCCA) our Court of Appeal endorsed these considerations:

*'''Shelter:'''
<blockquote>Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?</blockquote>
*'''Sexual and Personal Behaviour:'''
<blockquote>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?</blockquote>
*'''Services:'''
<blockquote>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?</blockquote>
*'''Social:'''
<blockquote>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?</blockquote>
*'''Economic Support:'''
<blockquote>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?</blockquote>
*'''Children:'''
<blockquote>What was the attitude and conduct of the parties concerning children?</blockquote>

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, ''[http://canlii.ca/t/5bpc Yakiwchuk v. Oaks]'', 2003 SKQB 124, expressed the difficulty of determining what is and what is not a "marriage-like" relationship this way:

<blockquote>"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."</blockquote>

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.

===Time limits===

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.

There are exceptions to the limitation periods in the ''[[Family Law Act Regulation]]'' that apply to suspend the passing of limitation periods when people engage in certain kinds of alternative dispute resolution but it is not yet clear what kinds of alternative dispute resolution will qualify and when that period of suspension starts and ends so it is wise to rely on the one or two year limitation period as applicable and not assume that the limitation period is suspended.

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,
*mediation,
*collaborative settlement processes, and
*arbitration.

You'll notice that negotiation isn't on this list. As well, under the [http://canlii.ca/t/8rdx 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,
*lawyers,
*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.

==Government benefits==

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.

===Social assistance===

The ministry that administers the ''[http://canlii.ca/t/84l7 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.

===Employment Insurance===

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.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]''
* ''[http://canlii.ca/t/7vjx Old Age Security Act]''
* ''[http://canlii.ca/t/84l7 Employment and Assistance Act]''
* ''[http://canlii.ca/t/7vfd Canada Pension Plan]''

===Links===

* [http://clicklaw.bc.ca/resource/1639 Legal Services Society's Family Law Website: Property issues and common-law relationships]
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/2291 Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], July 30, 2018}}

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[[Category:Marriage, Separation & Divorce]]
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Married Spouses and the Law on Marriage

2019-04-18T04:33:32Z

Michael Sinclair:

Married Spouses and the Law on Marriage

2019-04-18T04:32:34Z

Michael Sinclair: Prohibited Degrees Act amendment

Having Children with Assisted Reproduction

2018-08-31T16:24:52Z

Michael Sinclair: Changing edit date

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}

Once upon a time, not all that long ago in fact, sex was the only way to have a child. Sometimes, however, a child was not the participants' desired outcome and rules were developed to help the courts figure out who a child's father was when paternity was denied.

These days, with the help of technology, it's possible for a couple who want a child to have that child using donated eggs or sperm or with the help of a surrogate mother. The question now is less often about who isn't a parent than who is.

This section talks about assisted reproduction and the rules that determine who is a parent under the ''[[Family Law Act]]'' when parentage is denied, and when a child has been conceived through assisted reproduction.

==Determining parentage==

Part 3 of the provincial ''Family Law Act'' provides a comprehensive scheme for determining the parentage of children that applies for all legal purposes in British Columbia, including for family law disputes and wills and estates matters, except when parentage is determined under the ''[http://canlii.ca/t/84g5 Adoption Act]''. Section 24 says this:

<blockquote><tt>(1) For all purposes of the law of British Columbia,</tt></blockquote>
<blockquote><blockquote><tt>(a) a person is the child of his or her parents,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a child's parent is the person determined under this Part to be the child's parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.</tt></blockquote></blockquote>
<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>

Section 26(1) says who a child's parents are presumed to be:

<blockquote><tt>On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.</tt></blockquote>

Now it's usually quite obvious who the birth mother of a child is. It not always evident who the biological father is. A paternity test will resolve any uncertainty as to whether a particular man is the father of a particular child, and with today's technologies, the odds of an incorrect result are on the order of a thousandth of one percent. For a father, proving paternity can be essential to establishing a right to be involved in a child's life. For a mother, proving paternity can be an essential step in securing a child support order.

===The presumptions of fatherhood===

Only biological parents and people who are stepparents because they are the married or unmarried spouse of a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother.

Under s. 26(2) of the ''[[Family Law Act]]'', a man is presumed to be the biological father of a child in one of the following circumstances:

<blockquote><tt>(a) he was married to the child's birth mother on the day of the child's birth;</tt></blockquote>
<blockquote><tt>(b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended</tt></blockquote>
<blockquote><blockquote><tt>(i) by his death,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by a judgment of divorce, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) as referred to in section 21;</tt></blockquote></blockquote>
<blockquote><tt>(c) he married the child's birth mother after the child's birth and acknowledges that he is the father;</tt></blockquote>
<blockquote><tt>(d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth;</tt></blockquote>
<blockquote><tt>(e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section 3 of the Vital Statistics Act</tt></blockquote>

Presumptions like these were once very important when there was no reliable way to scientifically verify that a particular man was the father of a child. These days, however, we do have the technology and a man who disputes paternity despite these presumptions can ask for an order that a parentage test be conducted. Without challenging these presumptions, however, the man will likely be required to pay child support for the benefit of the child.

===Parentage tests===

Under s. 33(2) of the ''[[Family Law Act]]'', the court may

<blockquote><tt>order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests</tt></blockquote>

Under s. 33(1) a parentage test can be a human leukocyte antigen test, a DNA test, or "any other test the court considers appropriate." These are your choices:

*'''Human leukocyte antigen tests:''' Human leukocyte antigen tests are a kind of advanced blood test that looks at the genetic markers on white blood cells to determine the likelihood that the child's antigens were inherited from a particular man. Their accuracy is northward of 96% but can be spoofed if the purported father has had a recent transfusion.
*'''Deoxyribonucleic acid tests:''' DNA tests look for overlaps in the child's unique genetic code with the genetic code from the purported father and the child's mother. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that the test is wrong are about 0.0001%. Testing is performed on biological samples, most commonly blood samples. It is possible to have tests conducted based on mouth swabs.
*'''Chorionic villi sampling:''' This is a prenatal procedure that can be performed during the 10th to 13th week of pregnancy. It consists of a DNA test on a sample of the baby's placenta. It is an unpleasant procedure that must be conducted either through the mother's cervix or her abdominal wall.
*'''Amniocentesis:''' This is a prenatal procedure that can be performed during the 14th to 24th week of pregnancy. It consists of a DNA test on a sample of amniotic fluid drawn through the mother's abdominal wall.

The DNA of a child is a combination of the DNA of the child's mother and father. DNA tests compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Because of the accuracy of DNA testing, a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, I don't recommend that you challenge the results of a DNA test. Save your money.

A number of companies in British Columbia, such as [http://www.genetrackcanada.com Genetrack Biolabs], [http://www.thednalab.com Maxxam Analytics] and [http://www.pro-adn.com Orchid PRO-DNA], will perform paternity tests at a cost of between $400 and $800 plus taxes.

===Arranging for a parentage test===

If the mother and the purported father agree to have a paternity test conducted, no order of the court is necessary. You simply contact the appropriate company and arrange to have blood or saliva samples taken and tested. The results will be delivered to you directly. These companies even offer home sampling kits at a somewhat lower rate.

Where the parties don't agree to a test, one of them, usually the alleged father, must make an application to court for an order that samples be taken from the parties and the child and that a paternity test be conducted under s. 33(2) of the ''Family Law Act''. Under s 33(3), the court can also make an order about who must pay for the cost of the test.

==Assisted reproduction==

Assisted reproduction relies on the assistance of, and often genetic contributions from, other people to create a child. It is necessary when:

*a single person wants to have a child,
*one or both people in an opposite-sex relationship are infertile or the woman is unable to carry a baby to term,
*a couple in a same sex relationship want to have a child and they want the child to share in the genetic heritage of at least one of them, or
*a couple wish to include another person as the parent of their child.

Whatever circumstances are at hand, assisted reproduction inevitably involves of one or more of:

*the use of donated eggs,
*the use of donated sperm, and
*the cooperation of a woman who will carry the baby to term.

The 2004 federal ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]'' regulates the scientific and commercial aspects of assisted reproduction. From a family law perspective, the important parts of this act make it illegal to sell eggs or sperm, and say that a surrogate mother can't be paid for her services but she can be compensated for her expenses.

The provincial ''[[Family Law Act]]'' lets people make agreements when they are having a child by assisted reproduction that say which of the parties to the agreement will and won't be a legal parent of the child. Under the act, a child can have up to five parents if everyone agrees: up to two people who intend to have the child; an egg donor; a sperm donor; and, a surrogate mother.

===Donors===

Under s. 24 of the ''Family Law Act'' the donor of eggs or sperm is not the parent of a child merely because of the donation, and may not be declared to be a parent of a child. This section is very important. It means that a person can donate eggs or sperm without worrying that they will be asked to pay child support down the road.

A donor can be a parent if the intended parents and the donor sign a written assisted reproduction agreement before the child is conceived that says that the donor will be a parent. Donors who are parents under an assisted reproduction agreement are parents for all purposes under the ''Family Law Act''; they are presumed to be the guardians of a child and may be required to pay child support for the benefit of the child.

===Surrogate mothers===

A surrogate mother is a birth mother who is presumed to be the parent of a child under ss. 26 and 27 of the ''Family Law Act''. However, a surrogate mother will not be a parent if the intended parents and the surrogate mother sign a written assisted reproduction agreement before the child is conceived that says that the surrogate mother will not be a parent.

Without an assisted reproduction agreement, the child's parents will be presumed to be the surrogate mother and the child's biological father, and the surrogate mother will be a parent for all purposes under the ''Family Law Act''.

===Assisted reproduction after death===
====What happens if the donor dies?====
People who aim to have children by assisted reproduction ― including through ''in vitro'' fertilization when no one other than the intended parents are involved ― often freeze eggs, sperm and embryos for future use. This is especially common where multiple attempts may be necessary to have a successful pregnancy. It sometimes happens that one of the people who provide the genetic material dies before a child is conceived.

Section 28 of the ''Family Law Act'' says that when the donor dies before the child is conceived and there is proof that the donor:

*consented to the use of the genetic material or embryo by their married or unmarried spouse,
*consented to being the parent of a child conceived after their death, and
*did not withdraw their consent before death,

the parents of a child conceived with the genetic material or embryo are the deceased donor and the donor's married or unmarried spouse.

====What happens if the intended parent dies?====
Sometimes circumstances can play out in unexpected ways. For instance, an intended parent designated under a surrogacy agreement may die before the child is born. As long as the child has been conceived, section 29 of the ''Family Law Act'' says that the intended parent will still be the parent in the eyes of the law, provided that:
* the surrogate mother gives her written consent to surrender the child to the executor or other person acting in the place of the deceased intended parents, and
*the executor or other person takes the child into their care.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/7vzj Assisted Human Reproduction Act]''
* ''[http://canlii.ca/t/84fk Vital Statistics Act]''

===Links===

* [http://www.genetrackcanada.com Genetrack Biolabs]
* [http://www.pro-adn.com Orchid PRO-DNA]
* [http://www.thednalab.com Maxxam Analytics]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], July 30, 2018}}

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Adopting Children

2018-08-31T16:24:21Z

Michael Sinclair: Changing edit date

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child. At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic kinds of adoption: adoption within a family unit by a relative or stepparent, with the consent of the natural parent; and, adoption by a stranger through an agency. The first kind can be handled privately through the court process. The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act describes a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a ''direct placement'',
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including with respect to how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment they receive, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The ''Act'' also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The ''Act'' also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke their consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the Ministry for Children and Family Development's [http://redbookonline.bc211.ca/service/9493227_9493227/adoption_services Adoption Division] of their intent to adopt a child by filing a Form 1 of the [http://canlii.ca/t/859w Adoption Act Regulation] with the Ministry. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents that must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with their birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the stepparent) of the child loses their rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can access a summary of the process on the [https://www2.gov.bc.ca/gov/content/life-events/birth-adoption/adoptions/how-to-adopt-a-child BC Ministry of Children and Family Development website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in their community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what they consider to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with them to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the "Adoption Act" to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
301-1638 East Broadway 
Vancouver, British Columbia, V5N 1W1 
Phone: 604-736-7613 
Fax: 604-736-7916 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
620 Leon Avenue 
Kelowna, British Columbia, V1Y 9T2 
Phone: 250-763-8002 
Fax: (250) 763-6282 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84g5 Adoption Act]''
* [http://canlii.ca/t/859w Adoption Act Regulation]
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

* [http://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/children-and-family-development Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/adoptions Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], July 30, 2018}}

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[[Category:JP Boyd on Family Law]]

Grandparents and Extended Family Members

2018-08-31T16:23:49Z

Michael Sinclair: Changing edit date

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{Clicklawbadge
| resourcetype = a resource for 
| link = [https://www.clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren] '''and information on''' [https://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
}}People other than a child's parents can also have a legal relationship with a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

==Introduction==

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:

*where one or both of the guardians of the children are dead,
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability of the guardians to care for the children, or
*where they are being denied time or involvement with the children.

Their concerns are usually about supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'' whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

===The ''Divorce Act''===

Under s. 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.

===The ''Family Law Act''===

The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.

===Orders and agreements===

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might:

* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under s. 43(2) of the ''Family Law Act'',
* provide the caregiver or extended family member with specific rights of contact with the child, under s. 58(1) of the act, or
* require one or more parents or guardians to provide child support to the caregiver or extended family member, under s. 147(1) of the ''Act'' if the child is living with the caregiver or extended family member.

It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section.

==Rights and responsibilities of caregivers and extended family members==

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that ''Act'' and they must get the court's permission first.

Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.

===The care of children===

====The ''Divorce Act''====

When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.

To vary an order for custody or access, s. 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order they are asking for. The court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on ''[[Children in Family Law Matters|Children]]'', in the section [[Custody and Access]].

====The ''Family Law Act''====

Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights that go along with it, or for contact, they must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the section [[Guardianship, Parenting Arrangements and Contact]] in the chapter on ''[[Children in Family Law Matters|Children]]''.

=====Guardianship, parental responsibilities and parenting time=====

Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.

Under s. 39, the people who are presumed to be the guardians of a child are:

#the child's parents, as long as they lived together after the child was born,
#a person who is a parent of a child under an assisted reproduction agreement, and
#a parent who "regularly cares" for the child.

A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:

#applying for an order appointing them as a guardian of a child under s. 51,
#being appointed by as the standby guardian of a child under s. 55, or
#being appointed as the guardian of a child upon the death of a guardian under s. 53.

Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under s. 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:

*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development.

=====Authorizations to exercise parental responsibilities=====

Under s. 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental and other health-related treatments for the child,
*applying for a passport, licence or permit for the child,
*giving, refusing, or withdrawing consent for the child, if consent is required,
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
*requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after, when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.

=====Contact with a child=====

Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

===Child Support===

====The ''Divorce Act''====

Under s. 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.

====The ''Family Law Act''====

The ''Family Law Act'' says, at s. 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by s. 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under s 149, the court can make an order requiring a parent to pay child support to ''a designated person'' on the application of a person acting on behalf of a child:

<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>

As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.

According to s. 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:

*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special expenses.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* Department of Justice [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Calculator]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], July 30, 2018}}

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[[Category:JP Boyd on Family Law]]

Parents

2018-08-31T16:23:13Z

Michael Sinclair: changing edit dates

Unmarried Spouses

2018-08-31T16:21:05Z

Michael Sinclair: Changing review date

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}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.

==Introduction==

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 ''[http://canlii.ca/t/7vb7 Income Tax Act]'' defines "spouse" as including people who have cohabited for one year, while the provincial ''[http://canlii.ca/t/84l7 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.

===Provincial legislation===

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 ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'':

<blockquote><tt>[...] 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and</tt></blockquote>
<blockquote><blockquote><tt>(a) they were married to each other, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they had lived with each other in a marriage-like relationship for at least 2 years.</tt></blockquote></blockquote>

Here's the definition from s. 3 of the ''Family Law Act'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A spouse includes a former spouse.</tt></blockquote>

And here's the definition from the ''[http://canlii.ca/t/84gj Adult Guardianship Act]'':

<blockquote><tt>"spouse" means a person who</tt></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is living with another person in a marriage-like relationship;</tt></blockquote></blockquote>

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.

===Federal legislation===

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 ''[http://canlii.ca/t/7vjx Old Age Security Act]'':

<blockquote><tt>"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.</tt></blockquote>

Here's the definition from the ''[http://canlii.ca/t/7vb7#sec248 Income Tax Act]'':

<blockquote><tt>"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 </tt></blockquote>
<blockquote><blockquote><tt>(a) has so cohabited throughout the 12-month period that ends at that time, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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),</tt></blockquote></blockquote>
<blockquote><tt>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.</tt></blockquote>

"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship."

==="Common-law spouses"===

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.

===Living together...===

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 ''[http://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6428 (BCCA) our Court of Appeal endorsed these considerations:

*'''Shelter:'''
<blockquote>Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?</blockquote>
*'''Sexual and Personal Behaviour:'''
<blockquote>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?</blockquote>
*'''Services:'''
<blockquote>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?</blockquote>
*'''Social:'''
<blockquote>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?</blockquote>
*'''Economic Support:'''
<blockquote>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?</blockquote>
*'''Children:'''
<blockquote>What was the attitude and conduct of the parties concerning children?</blockquote>

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, ''[http://canlii.ca/t/5bpc Yakiwchuk v. Oaks]'', 2003 SKQB 124, expressed the difficulty of determining what is and what is not a "marriage-like" relationship this way:

<blockquote>"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."</blockquote>

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.

===Time limits===

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,
*mediation,
*collaborative settlement processes, and
*arbitration.

You'll notice that negotiation isn't on this list. As well, under the [http://canlii.ca/t/8rdx 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,
*lawyers,
*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.

==Government benefits==

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.

===Social assistance===

The ministry that administers the ''[http://canlii.ca/t/84l7 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.

===Employment Insurance===

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.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]''
* ''[http://canlii.ca/t/7vjx Old Age Security Act]''
* ''[http://canlii.ca/t/84l7 Employment and Assistance Act]''
* ''[http://canlii.ca/t/7vfd Canada Pension Plan]''

===Links===

* [http://clicklaw.bc.ca/resource/1639 Legal Services Society's Family Law Website: Property issues and common-law relationships]
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/2291 Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], July 30, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Married Spouses and the Law on Marriage

2018-08-31T16:20:26Z

Michael Sinclair:

Family Relationships

2018-08-29T00:24:05Z

Michael Sinclair: updating last date of legal review

{{JPBOFL Start Chapter
|Related = [[Marriage & Married Spouses]]{{·}}[[Unmarried Spouses]]{{·}}[[Other Unmarried Relationships]]{{·}}[[Children's Caregivers and Extended Family|Caregivers and Extended Family]]{{·}}[[Adoption]]{{·}}[[Parentage and Assisted Reproduction]]
}}
{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}People in virtually any kind of relationship can find themselves having a problem involving family law. Some people are married, others have lived together long enough to qualify as spouses without being married, while others are in shorter relationships, perhaps lasting for only one night, which produce children.

Family law isn't just about relationships between spouses or parents. It also concerns the relationships between grandchildren and grandparents, between nieces and nephews and aunts and uncles, and between children and other adults with significant roles in their lives

The first chapter focuses on the different kinds of family relationships recognized by the ''[[Family Law Act]]''. In this first section we take a look at the range of family relationships, and examine how the law impacts on people in these relationships. We also discuss some urban myths about married and unmarried relationships. The other sections in this chapter go into more detail about the legal rights and duties involved in [[Marriage & Married Spouses|married relationships]], [[Unmarried Spouses|unmarried spousal relationships]], and relationships involving [[Other Unmarried Relationships|unmarried people who have had a child but never lived together]]. The final section talks about the claims a child's [[Children's Caregivers and Extended Family|caregivers and extended family members]] can make. Everything in this chapter applies just as much to same sex couples as it does to opposite-sex couples.

The second chapter addresses the different rights and responsibilities that different couples married and unmarried couples that have cohabited for two years or more have and owe compared to other people. We learn that there is very little difference anymore in the rights an obligations of married persons and those that have cohabited in a marriage-like relationship for two years or more. This chapter also discusses the rights of persons that live together for less than two years, which pertain to children, protection orders and spousal support if there are children born of the relationship.

The third chapter addresses common misunderstandings regarding married and unmarried relationships while the fourth chapter deals with adoption and assisted reproduction. Additional links and resources are provided in the fifth chapter.

==Introduction==

Being in a family relationship can create legal obligations in addition to the moral and social obligations that we usually associate with a family relationship. Under the old common law, for example, a husband had the legal duty to provide his wife and children with shelter, food, and the other basic necessities of life. Although this obligation still exists under the federal ''[http://canlii.ca/t/7vf2 Criminal Code]'', it has not been a part of the legislation on family law since the English ''Divorce and Matrimonial Causes Act'' was passed in 1857. As society has evolved, so have the obligations triggered by different kinds of family relationships.

Family law in British Columbia deals with four kinds of family relationships:

*'''Married spouses:''' People who are married spouses have been wed at a ceremony conducted by someone licensed by the province to perform marriages. Married relationships end when a court makes an order for the spouses’ divorce.

*'''Unmarried spouses:''' People who are unmarried spouses have lived with each other in a "marriage-like relationship" for a certain minimum amount of time; this is the sort of relationship people mean when they talk about "common-law spouses." The relationships of unmarried spouses end when they separate. Unmarried spouses do not need to get a divorce.

*'''Unmarried parents:''' Unmarried parents are people who have had a child together but never lived together. Unmarried parents might include people who have helped someone have a child through assisted reproduction, like being an egg donor, a sperm donor, or a surrogate mother, depending on what an assisted reproduction agreement might say about who’s a parent and who’s not. Unmarried parents also include people who were in a dating or casual relationship and have had a child.

*'''Children’s caregivers and extended family:''' Extended family members and other adults may have a parent-like relationship with a child who is not their biological child. This might include grandparents, aunts and uncles, and other people who have had a significant role in raising a child.

===Married spouses===

To be able to marry, the parties must be, among other things, unmarried, sane, relatively sober, and over a certain age. They must also be married by a person properly licensed to conduct marriages, who is either a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia is described in detail in the [[Marriage & Married Spouses]] section of this chapter, which has more information about the law relating to marriage.

====Living together====

Many, if not most, people who marry live together before they tie the knot. It is important to know that a lot of the rules about property and debt under the provincial ''[[Family Law Act]]'' are based on when a married couple began to live together, if that date is earlier than the date of marriage.

====Marriage====

The law about marriage has changed enormously over the last three centuries; marriage once had a much more important legal significance than it does today. Before about 1890, a married couple was legally considered to be one person. A husband took ownership of all of his wife's property on marriage and could use his wife's assets as collateral for loans. His wife, on the other hand, lost the ability to hold a bank account in her own name, sell her property without her husband's consent, or start a law suit or run a business in her own name. In contrast, women who hadn't married could own property in their own names, have bank accounts, sue and be sued, and run a business.

The institution of marriage was once of such social significance that people could be sued for attempting to interfere with a married couple's relationship. Until 1972, it was a civil offence to falsely boast that you were married to someone (called ''jactitation of marriage'') or to lure a spouse away from a married relationship (called ''criminal conversation''), and a court proceeding could be brought against someone for loss of the benefits of marriage (called ''loss of consortium'').

All of these old rules are now extinguished in British Columbia and married couples are no longer considered to be a single legal person, with the husband having sovereign rights over his wife and her property. Since 1978, married women have had exactly the same property rights that single women have, which also happen to be the same property rights that their husbands have. A husband can no longer apply for credit in his wife's name or use her property as collateral for a loan without her express permission. On top of this, the old rules restricting marriage to opposite-sex couples have now been abolished, first by the courts and then as a result of the federal ''[http://laws-lois.justice.gc.ca/eng/acts/C-31.5/index.html Civil Marriage Act]''.

If there's a difference between married and unmarried spousal relationships (apart from the religious dimensions), it's probably that marriage often implies a greater sense of personal commitment to the relationship and a willingness to treat the relationship as a true partnership. Marriage suggests something more permanent than an unmarried relationship. It may signal a personal dedication to nurturing the relationship and a willingness to stick it out through the good times and the bad.

Under the law of British Columbia, however, the most significant difference between married and unmarried spousal relationships is that only married spouses need a divorce or an annulment to end their relationship.

====Annulment====

If one or more of the requirements of a valid marriage are lacking, a marriage may be cancelled, or ''annulled''. To obtain an annulment, one of the parties must begin a court proceeding asking for a declaration that the marriage is void. A marriage may be annulled if:

*a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
*one or both of the spouses did not consent to the marriage,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
*the marriage cannot be consummated,
*the marriage was a sham, or
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You can find more information about void marriages, voidable marriages, and annulment in this chapter's section on [[Marriage & Married Spouses]].

====Separation====

Separation is simple: the parties must simply start living "separate and apart" from each other, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer, sign something, or file some sort of document in court to obtain a separation. You just need to call it quits and tell your spouse that it's over.

For married spouses, separation may signal the breakdown of their emotional relationship but it doesn't end their legal relationship. To do this, one or both spouses must apply to court for a divorce.

====Divorce====

Divorce is the legal termination of a valid marriage. To obtain a divorce, one or both spouses must begin a court proceeding asking for a divorce order, and at least one of the spouses must have been ''ordinarily resident'' in British Columbia for the year before starting the court proceedings.

The court will make a divorce order if the married relationship has broken down. Under the federal ''[[Divorce Act]]'', there are three ways to prove marriage breakdown:

#the spouses have been separated for at least one year,
#one of the spouses committed adultery, or
#one of the spouses treated the other spouse with such mental or physical cruelty that the relationship cannot continue.

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for marriage breakdown has been established, the courts will allow the divorce application, regardless of any objections raised by the other spouse.

===Unmarried spouses===

Section 3(1) of the provincial ''[[Family Law Act]]'' defines ''spouse'' as including married spouses as well as:

#people who have lived in a marriage-like relationship for at least two years, and
#people who have lived in a marriage-like relationship for less than two years and have had a child together.

Unmarried spouses who have lived together for at least two years have all of the same rights and obligations under the ''Family Law Act'' as married spouses.

Unmarried spouses who have lived together for less than two years don't qualify as spouses for the parts of the act that talk about dividing property and debt, but they are spouses for the parts about spousal support and the child support obligations of stepparents.

The federal ''Divorce Act'' doesn't apply to unmarried relationships, whether the parties are spouses under provincial law or not.

====Living together====

The relationship between unmarried spouses begins on the date they begin to live together in a "marriage-like relationship." This might be the date that a couple who are dating moves in together, or it might be the date that a relationship between housemates becomes a romantic, committed relationship.

This chapter's section on [[Unmarried Spouses]] talks about when a relationship becomes "marriage-like" in nature.

====Separation====

Unmarried spouses are separated when they begin to live "separate and apart" from each other, whether under the same roof or in separate homes. Contrary to popular
opinion, you do not need to see a lawyer, sign something, or file some sort of document in court to obtain a separation. You just need to call it quits and tell your spouse that it's over, and then start acting like it's over.

For unmarried spouses, separation is the end of their emotional and legal relationship with each other. Unmarried spouses do not need to get divorced.

===Other unmarried relationships===

The other group of people the ''[[Family Law Act]]'' talks about is ''parents'', and this group is broader than a lot of people might think. Family law doesn't have much to do with people who are just dating and don't have a child together.

====Parents through natural reproduction====

Under s. 26, a child's parents are presumed to be the child's ''birth mother'' and ''biological father''. This includes ''everyone'' who is a mother or a father, regardless of the nature of the parents' relationship with each other. They could be married spouses or unmarried spouses, dating each other or not dating at all.

====Parents through assisted reproduction====

When one or two people need the help of others to have a child, some additional rules apply:

*the one or two people who want to have the child, the ''intended parents'', are parents,
*the donor of sperm or an egg ''is not a parent'', unless everyone has signed an assisted reproduction agreement that makes the donor a parent, and
*a surrogate mother ''is a parent'', unless everyone has signed an assisted reproduction agreement that makes her not a parent.

If you do the math, you'll see that under the ''Family Law Act'' a child can have up to five parents. The act doesn't discriminate between parents who are intended parents and parents who are donors or surrogate mothers. In for a penny, in for a pound, as the saying goes: a parent under an assisted reproduction agreement is liable to pay child support just like every other parent, but is also presumed to be the guardian of a child under s. 39(3).

===Caregivers and extended family relationships===

Other people can have a legal relationship with a child in addition to people who are parents. Most of the time these people are extended family members who have had a parent-like relationship with a child, such as a grandparent, an aunt or an uncle, or even a much older sibling, but any adult who has had a parenting role in a child's life may have an interest in a child.

This kind of legal relationship plays out in one of two ways. Where a child's parents are doing a good enough job, an extended family member might want ''contact'' with the child, if time with the child is being withheld. Section 59(2) of the ''[[Family Law Act]]'' says this:

<blockquote><tt>A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.</tt></blockquote>

Where a child's guardians are no longer in the picture or if there's a concern about the child's welfare with their guardians, an extended family member might also apply for ''guardianship'' of the child. Section 51(1)(a) merely says that the court may appoint "a person" as a child's guardian, and an extended family member is certainly a person.

==Different rights and responsibilities==

===Married spouses and unmarried spouses===

Married spouses and unmarried spouses who have lived together for at least two years have exactly the same rights in British Columbia under the provincial ''[[Family Law Act]]''. Both may:

*be the ''guardians'' of any children they happen to have, and as guardians have parental responsibilities and parenting time with respect to those children,
*have ''contact'' with a child if they happen not to be guardians,
*ask for or be responsible to pay ''child support'',
*ask for or be responsible to pay ''spousal support'',
*share in ''family property'' and any ''family debt'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.

The only legal differences between married spouses and unmarried spouses who have lived together for at least two years are that only married spouses must get a ''divorce'' to end their relationship with one another, and only married spouses can ask the court for orders under the federal ''[[Divorce Act]]''. That's it.

The only legal difference between unmarried spouses who have lived together for at least two years and unmarried spouses who have lived together for less than two years is that couples who have lived together for less than two years aren't able to share in family property and family debt under the ''Family Law Act''. They may:

*be the ''guardians'' of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
*have ''contact'' with a child if they happen not to be guardians,
*ask for or be responsible to pay ''child support'',
*ask for or be responsible to pay ''spousal support'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.

Although unmarried spouses who have lived together for less than two years are cut out of the part of the act that deals with property and debt, they still share in property they jointly own and they can make claims to property owned only by one spouse under the law of trusts and the law of equity. These claims are discussed in the introductory section of the [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter.

===Other unmarried relationships===

Although people who are not spouses can have all sorts of legal relationships with each other, from co-owning land or running a business together, from a family law perspective, in general their most important relationship is as parents. Parents may:

*be the ''guardians'' of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
*have ''contact'' with a child,
*ask for or be responsible to pay ''child support'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.

Like unmarried spouses who have lived together for less than two years, couples who are not spouses still share in property they jointly own, and they can make claims to property owned only by one spouse under the law of trusts and the law of equity. These claims are discussed in the introductory section of the [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter.

Couples who are not spouses, not parents, and do not live together cannot apply for protection orders under the ''[[Family Law Act]]''.

===Children's caregivers and extended family===

Adults with an interest in a child who is not theirs may:

*ask to be appointed as the ''guardian'' of a child, and as a guardian have parental responsibilities and parenting time with respect to that child,
*have ''contact'' with a child, and
*ask for ''child support''.

==A few surprisingly common misunderstandings==

Certain misconceptions about what marriage, unmarried relationships, separation and divorce involve are fairly common. Part of these misunderstandings, I'm sure, come from television and movies. Others are just urban myths.

===Married relationships===

====Marriage and getting married====

It is not true that an unmarried couple is automatically "married" once they've lived together for a certain amount of time. A unmarried couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage."

You are not legally married unless you have a marriage ceremony and the ceremony is conducted by someone authorized by the provincial government to perform marriages. Your car mechanic can marry you, if your car mechanic is a marriage commissioner, but your Wiccan high priestess cannot legally marry you unless she also happens to be a licensed marriage commissioner.

Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, as long as the marriages meet the criteria for valid marriages, discussed in the next section. If you want to undo the marriage, you'll have to get divorced just like every other person in a valid marriage, and that will usually mean waiting until one year has passed since your separation. An alcohol-induced Las Vegas marriage was upheld in the very funny 2005 Supreme Court case of ''[http://canlii.ca/t/1q47l Davison v. Sweeney]'', 2005 BCSC 757, simply because the spouses knew what they were doing when they married, despite the fact that they had never had sex and separated two days after the marriage, when their respective holidays ended.

====Separation and the "legal separation"====

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated. Congratulations.

To be crystal clear:

*you do not need to "file for separation" to be separated, in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits,
*there are no court documents or other papers you have to sign to be separated, and
*you don't need to appear before a judge, lawyer, shaman or anyone else to be separated.

To be separated, you just need to decide that your relationship is over and say so.

The fact that a married couple is separated isn't enough to let a separated spouse remarry. You must be formally divorced by an order of the court in order to remarry. If you remarry without being divorced from the first marriage, the new marriage will be invalid.

On the other hand, the fact that you're separated won't stop you from having a new relationship, including a new relationship that would qualify as a spousal relationship. Technically, this is adultery, but no one except the Pope or your in-laws is likely to care. There's a lot more information about new relationships after separation in this chapter's section on [[Separation]].

====Divorce and getting divorced====

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.

It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the issues arising when a couple separates, like the division of property or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You don't need to get divorced, the sands of time have done that for you.

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.

The one exception to this last rule has to do with the "consummation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an "invincible repugnance" to the act of sexual intercourse or some physical condition that makes sex impossible.

===Unmarried spousal relationships===

====The automatic marriage====

It is not true that a unmarried couple are automatically married once they've lived together for a certain amount of time, nor is there any such thing as a "common-law marriage." You can have lived together for twenty years and still not be legally married; an unmarried couple is never married unless there is an actual marriage ceremony performed by someone licensed to perform marriages.

====Applying for spousal status====

A couple become spouses when they qualify as a "spouse" under whatever law applies; for most federal laws the couple must have lived together for at least one year, and for most provincial laws the couple must have lived together for at least two years. There's no application to make and no one to apply to. It's all about meeting the definition of "spouse."

====The accidental spouse====

It is not true that you become unmarried spouses simply by living with someone for long enough. You must be living together in a "marriage-like relationship" to become unmarried spouses; mere roommates will not become spouses by accident. There wouldn't be any frat houses if this wasn't the case.

Likewise, a dating couple won't become spouses if they have a child. They must also be living together in a "marriage-like relationship."

====Separation and the "legal separation"====

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in a unmarried relationship, a marriage, or you're just dating, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner leaves, boom, you're separated.

====Getting divorced====

Unmarried spouses do not need to be divorced. Once you've decided to separate, the relationship is over, regardless of how long the relationship may have been. There is no need to get a divorce because there's no marriage to terminate.

==Adoption and Assisted Reproduction==

Adoption and assisted reproduction are non-conventional methods of becoming parents provided for by BC law.

===Adoption===
Adoption is a Court process under the "[http://canlii.ca/t/84g5 Adoption Act]" which makes a non-biological parent of a child into his/her legal parent. That means they suddenly have all the rights and obligation of the child’s parent. If a biological parent is not expressly kept as a parent during this process, they no longer have any parental rights or obligations after an Adoption Order is made by the Supreme Court of BC. This means they don’t pay support, and the child is no longer entitled to inherit from them. They may be able to continue to have ‘access’ to have some sort of relationship with the child if either the Adoption Order, or some other Order made later, allows this. The child can inherit from the adopting parent once the Order is made. If the new parenting relationship breaks down, the adopting parent can claim the same rights as a biological parent to have the child reside with them, participate in parenting decisions, and to receive or pay child support. If this happens, disputes are handled in the same way as for biological parents, using the "[http://canlii.ca/t/7vbw Divorce Act]" or "[http://canlii.ca/t/8q3k Family Law Act]".

===Assisted Reproduction===
Assisted reproduction is a term that applies to an array of methods of having a baby in ways other than the traditional method. Examples include situations where there is only one parent who wishes to have a child, if one partner is incapable of having children, if same sex partners wish to have a child or if a couple wish to include another person as the parent of their child. The methods include egg donation, sperm donation and surrogacy.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''
* ''[http://canlii.ca/t/846b Marriage Act]''

===Links===

* [https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html Canada child benefits calculator]
* [http://clicklaw.bc.ca/resource/2289 Legal Services Society's Family Law Website: FAQs about marriage, divorce and annulments]
* [http://clicklaw.bc.ca/resource/1257 Canadian Bar Association BC Branch: Script on getting married]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, Chapter 1, Types of Relationships]
* [http://clicklaw.bc.ca/resource/2376 Canadian Bar Association BC Branch: Introduction to family law]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], July 31, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Family Relationships

2018-07-31T20:49:27Z

Michael Sinclair: amending the introduction to reflect added sections

{{JPBOFL Start Chapter
|Related = [[Marriage & Married Spouses]]{{·}}[[Unmarried Spouses]]{{·}}[[Other Unmarried Relationships]]{{·}}[[Children's Caregivers and Extended Family|Caregivers and Extended Family]]{{·}}[[Adoption]]{{·}}[[Parentage and Assisted Reproduction]]
}}
{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}People in virtually any kind of relationship can find themselves having a problem involving family law. Some people are married, others have lived together long enough to qualify as spouses without being married, while others are in shorter relationships, perhaps lasting for only one night, which produce children.

Family law isn't just about relationships between spouses or parents. It also concerns the relationships between grandchildren and grandparents, between nieces and nephews and aunts and uncles, and between children and other adults with significant roles in their lives

The first chapter focuses on the different kinds of family relationships recognized by the ''[[Family Law Act]]''. In this first section we take a look at the range of family relationships, and examine how the law impacts on people in these relationships. We also discuss some urban myths about married and unmarried relationships. The other sections in this chapter go into more detail about the legal rights and duties involved in [[Marriage & Married Spouses|married relationships]], [[Unmarried Spouses|unmarried spousal relationships]], and relationships involving [[Other Unmarried Relationships|unmarried people who have had a child but never lived together]]. The final section talks about the claims a child's [[Children's Caregivers and Extended Family|caregivers and extended family members]] can make. Everything in this chapter applies just as much to same sex couples as it does to opposite-sex couples.

The second chapter addresses the different rights and responsibilities that different couples married and unmarried couples that have cohabited for two years or more have and owe compared to other people. We learn that there is very little difference anymore in the rights an obligations of married persons and those that have cohabited in a marriage-like relationship for two years or more. This chapter also discusses the rights of persons that live together for less than two years, which pertain to children, protection orders and spousal support if there are children born of the relationship.

The third chapter addresses common misunderstandings regarding married and unmarried relationships while the fourth chapter deals with adoption and assisted reproduction. Additional links and resources are provided in the fifth chapter.

==Introduction==

Being in a family relationship can create legal obligations in addition to the moral and social obligations that we usually associate with a family relationship. Under the old common law, for example, a husband had the legal duty to provide his wife and children with shelter, food, and the other basic necessities of life. Although this obligation still exists under the federal ''[http://canlii.ca/t/7vf2 Criminal Code]'', it has not been a part of the legislation on family law since the English ''Divorce and Matrimonial Causes Act'' was passed in 1857. As society has evolved, so have the obligations triggered by different kinds of family relationships.

Family law in British Columbia deals with four kinds of family relationships:

*'''Married spouses:''' People who are married spouses have been wed at a ceremony conducted by someone licensed by the province to perform marriages. Married relationships end when a court makes an order for the spouses’ divorce.

*'''Unmarried spouses:''' People who are unmarried spouses have lived with each other in a "marriage-like relationship" for a certain minimum amount of time; this is the sort of relationship people mean when they talk about "common-law spouses." The relationships of unmarried spouses end when they separate. Unmarried spouses do not need to get a divorce.

*'''Unmarried parents:''' Unmarried parents are people who have had a child together but never lived together. Unmarried parents might include people who have helped someone have a child through assisted reproduction, like being an egg donor, a sperm donor, or a surrogate mother, depending on what an assisted reproduction agreement might say about who’s a parent and who’s not. Unmarried parents also include people who were in a dating or casual relationship and have had a child.

*'''Children’s caregivers and extended family:''' Extended family members and other adults may have a parent-like relationship with a child who is not their biological child. This might include grandparents, aunts and uncles, and other people who have had a significant role in raising a child.

===Married spouses===

To be able to marry, the parties must be, among other things, unmarried, sane, relatively sober, and over a certain age. They must also be married by a person properly licensed to conduct marriages, who is either a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia is described in detail in the [[Marriage & Married Spouses]] section of this chapter, which has more information about the law relating to marriage.

====Living together====

Many, if not most, people who marry live together before they tie the knot. It is important to know that a lot of the rules about property and debt under the provincial ''[[Family Law Act]]'' are based on when a married couple began to live together, if that date is earlier than the date of marriage.

====Marriage====

The law about marriage has changed enormously over the last three centuries; marriage once had a much more important legal significance than it does today. Before about 1890, a married couple was legally considered to be one person. A husband took ownership of all of his wife's property on marriage and could use his wife's assets as collateral for loans. His wife, on the other hand, lost the ability to hold a bank account in her own name, sell her property without her husband's consent, or start a law suit or run a business in her own name. In contrast, women who hadn't married could own property in their own names, have bank accounts, sue and be sued, and run a business.

The institution of marriage was once of such social significance that people could be sued for attempting to interfere with a married couple's relationship. Until 1972, it was a civil offence to falsely boast that you were married to someone (called ''jactitation of marriage'') or to lure a spouse away from a married relationship (called ''criminal conversation''), and a court proceeding could be brought against someone for loss of the benefits of marriage (called ''loss of consortium'').

All of these old rules are now extinguished in British Columbia and married couples are no longer considered to be a single legal person, with the husband having sovereign rights over his wife and her property. Since 1978, married women have had exactly the same property rights that single women have, which also happen to be the same property rights that their husbands have. A husband can no longer apply for credit in his wife's name or use her property as collateral for a loan without her express permission. On top of this, the old rules restricting marriage to opposite-sex couples have now been abolished, first by the courts and then as a result of the federal ''[http://laws-lois.justice.gc.ca/eng/acts/C-31.5/index.html Civil Marriage Act]''.

If there's a difference between married and unmarried spousal relationships (apart from the religious dimensions), it's probably that marriage often implies a greater sense of personal commitment to the relationship and a willingness to treat the relationship as a true partnership. Marriage suggests something more permanent than an unmarried relationship. It may signal a personal dedication to nurturing the relationship and a willingness to stick it out through the good times and the bad.

Under the law of British Columbia, however, the most significant difference between married and unmarried spousal relationships is that only married spouses need a divorce or an annulment to end their relationship.

====Annulment====

If one or more of the requirements of a valid marriage are lacking, a marriage may be cancelled, or ''annulled''. To obtain an annulment, one of the parties must begin a court proceeding asking for a declaration that the marriage is void. A marriage may be annulled if:

*a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
*one or both of the spouses did not consent to the marriage,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
*the marriage cannot be consummated,
*the marriage was a sham, or
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You can find more information about void marriages, voidable marriages, and annulment in this chapter's section on [[Marriage & Married Spouses]].

====Separation====

Separation is simple: the parties must simply start living "separate and apart" from each other, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer, sign something, or file some sort of document in court to obtain a separation. You just need to call it quits and tell your spouse that it's over.

For married spouses, separation may signal the breakdown of their emotional relationship but it doesn't end their legal relationship. To do this, one or both spouses must apply to court for a divorce.

====Divorce====

Divorce is the legal termination of a valid marriage. To obtain a divorce, one or both spouses must begin a court proceeding asking for a divorce order, and at least one of the spouses must have been ''ordinarily resident'' in British Columbia for the year before starting the court proceedings.

The court will make a divorce order if the married relationship has broken down. Under the federal ''[[Divorce Act]]'', there are three ways to prove marriage breakdown:

#the spouses have been separated for at least one year,
#one of the spouses committed adultery, or
#one of the spouses treated the other spouse with such mental or physical cruelty that the relationship cannot continue.

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for marriage breakdown has been established, the courts will allow the divorce application, regardless of any objections raised by the other spouse.

===Unmarried spouses===

Section 3(1) of the provincial ''[[Family Law Act]]'' defines ''spouse'' as including married spouses as well as:

#people who have lived in a marriage-like relationship for at least two years, and
#people who have lived in a marriage-like relationship for less than two years and have had a child together.

Unmarried spouses who have lived together for at least two years have all of the same rights and obligations under the ''Family Law Act'' as married spouses.

Unmarried spouses who have lived together for less than two years don't qualify as spouses for the parts of the act that talk about dividing property and debt, but they are spouses for the parts about spousal support and the child support obligations of stepparents.

The federal ''Divorce Act'' doesn't apply to unmarried relationships, whether the parties are spouses under provincial law or not.

====Living together====

The relationship between unmarried spouses begins on the date they begin to live together in a "marriage-like relationship." This might be the date that a couple who are dating moves in together, or it might be the date that a relationship between housemates becomes a romantic, committed relationship.

This chapter's section on [[Unmarried Spouses]] talks about when a relationship becomes "marriage-like" in nature.

====Separation====

Unmarried spouses are separated when they begin to live "separate and apart" from each other, whether under the same roof or in separate homes. Contrary to popular
opinion, you do not need to see a lawyer, sign something, or file some sort of document in court to obtain a separation. You just need to call it quits and tell your spouse that it's over, and then start acting like it's over.

For unmarried spouses, separation is the end of their emotional and legal relationship with each other. Unmarried spouses do not need to get divorced.

===Other unmarried relationships===

The other group of people the ''[[Family Law Act]]'' talks about is ''parents'', and this group is broader than a lot of people might think. Family law doesn't have much to do with people who are just dating and don't have a child together.

====Parents through natural reproduction====

Under s. 26, a child's parents are presumed to be the child's ''birth mother'' and ''biological father''. This includes ''everyone'' who is a mother or a father, regardless of the nature of the parents' relationship with each other. They could be married spouses or unmarried spouses, dating each other or not dating at all.

====Parents through assisted reproduction====

When one or two people need the help of others to have a child, some additional rules apply:

*the one or two people who want to have the child, the ''intended parents'', are parents,
*the donor of sperm or an egg ''is not a parent'', unless everyone has signed an assisted reproduction agreement that makes the donor a parent, and
*a surrogate mother ''is a parent'', unless everyone has signed an assisted reproduction agreement that makes her not a parent.

If you do the math, you'll see that under the ''Family Law Act'' a child can have up to five parents. The act doesn't discriminate between parents who are intended parents and parents who are donors or surrogate mothers. In for a penny, in for a pound, as the saying goes: a parent under an assisted reproduction agreement is liable to pay child support just like every other parent, but is also presumed to be the guardian of a child under s. 39(3).

===Caregivers and extended family relationships===

Other people can have a legal relationship with a child in addition to people who are parents. Most of the time these people are extended family members who have had a parent-like relationship with a child, such as a grandparent, an aunt or an uncle, or even a much older sibling, but any adult who has had a parenting role in a child's life may have an interest in a child.

This kind of legal relationship plays out in one of two ways. Where a child's parents are doing a good enough job, an extended family member might want ''contact'' with the child, if time with the child is being withheld. Section 59(2) of the ''[[Family Law Act]]'' says this:

<blockquote><tt>A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.</tt></blockquote>

Where a child's guardians are no longer in the picture or if there's a concern about the child's welfare with their guardians, an extended family member might also apply for ''guardianship'' of the child. Section 51(1)(a) merely says that the court may appoint "a person" as a child's guardian, and an extended family member is certainly a person.

==Different rights and responsibilities==

===Married spouses and unmarried spouses===

Married spouses and unmarried spouses who have lived together for at least two years have exactly the same rights in British Columbia under the provincial ''[[Family Law Act]]''. Both may:

*be the ''guardians'' of any children they happen to have, and as guardians have parental responsibilities and parenting time with respect to those children,
*have ''contact'' with a child if they happen not to be guardians,
*ask for or be responsible to pay ''child support'',
*ask for or be responsible to pay ''spousal support'',
*share in ''family property'' and any ''family debt'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.

The only legal differences between married spouses and unmarried spouses who have lived together for at least two years are that only married spouses must get a ''divorce'' to end their relationship with one another, and only married spouses can ask the court for orders under the federal ''[[Divorce Act]]''. That's it.

The only legal difference between unmarried spouses who have lived together for at least two years and unmarried spouses who have lived together for less than two years is that couples who have lived together for less than two years aren't able to share in family property and family debt under the ''Family Law Act''. They may:

*be the ''guardians'' of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
*have ''contact'' with a child if they happen not to be guardians,
*ask for or be responsible to pay ''child support'',
*ask for or be responsible to pay ''spousal support'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.

Although unmarried spouses who have lived together for less than two years are cut out of the part of the act that deals with property and debt, they still share in property they jointly own and they can make claims to property owned only by one spouse under the law of trusts and the law of equity. These claims are discussed in the introductory section of the [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter.

===Other unmarried relationships===

Although people who are not spouses can have all sorts of legal relationships with each other, from co-owning land or running a business together, from a family law perspective, in general their most important relationship is as parents. Parents may:

*be the ''guardians'' of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
*have ''contact'' with a child,
*ask for or be responsible to pay ''child support'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.

Like unmarried spouses who have lived together for less than two years, couples who are not spouses still share in property they jointly own, and they can make claims to property owned only by one spouse under the law of trusts and the law of equity. These claims are discussed in the introductory section of the [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter.

Couples who are not spouses, not parents, and do not live together cannot apply for protection orders under the ''[[Family Law Act]]''.

===Children's caregivers and extended family===

Adults with an interest in a child who is not theirs may:

*ask to be appointed as the ''guardian'' of a child, and as a guardian have parental responsibilities and parenting time with respect to that child,
*have ''contact'' with a child, and
*ask for ''child support''.

==A few surprisingly common misunderstandings==

Certain misconceptions about what marriage, unmarried relationships, separation and divorce involve are fairly common. Part of these misunderstandings, I'm sure, come from television and movies. Others are just urban myths.

===Married relationships===

====Marriage and getting married====

It is not true that an unmarried couple is automatically "married" once they've lived together for a certain amount of time. A unmarried couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage."

You are not legally married unless you have a marriage ceremony and the ceremony is conducted by someone authorized by the provincial government to perform marriages. Your car mechanic can marry you, if your car mechanic is a marriage commissioner, but your Wiccan high priestess cannot legally marry you unless she also happens to be a licensed marriage commissioner.

Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, as long as the marriages meet the criteria for valid marriages, discussed in the next section. If you want to undo the marriage, you'll have to get divorced just like every other person in a valid marriage, and that will usually mean waiting until one year has passed since your separation. An alcohol-induced Las Vegas marriage was upheld in the very funny 2005 Supreme Court case of ''[http://canlii.ca/t/1q47l Davison v. Sweeney]'', 2005 BCSC 757, simply because the spouses knew what they were doing when they married, despite the fact that they had never had sex and separated two days after the marriage, when their respective holidays ended.

====Separation and the "legal separation"====

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated. Congratulations.

To be crystal clear:

*you do not need to "file for separation" to be separated, in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits,
*there are no court documents or other papers you have to sign to be separated, and
*you don't need to appear before a judge, lawyer, shaman or anyone else to be separated.

To be separated, you just need to decide that your relationship is over and say so.

The fact that a married couple is separated isn't enough to let a separated spouse remarry. You must be formally divorced by an order of the court in order to remarry. If you remarry without being divorced from the first marriage, the new marriage will be invalid.

On the other hand, the fact that you're separated won't stop you from having a new relationship, including a new relationship that would qualify as a spousal relationship. Technically, this is adultery, but no one except the Pope or your in-laws is likely to care. There's a lot more information about new relationships after separation in this chapter's section on [[Separation]].

====Divorce and getting divorced====

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.

It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the issues arising when a couple separates, like the division of property or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You don't need to get divorced, the sands of time have done that for you.

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.

The one exception to this last rule has to do with the "consummation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an "invincible repugnance" to the act of sexual intercourse or some physical condition that makes sex impossible.

===Unmarried spousal relationships===

====The automatic marriage====

It is not true that a unmarried couple are automatically married once they've lived together for a certain amount of time, nor is there any such thing as a "common-law marriage." You can have lived together for twenty years and still not be legally married; an unmarried couple is never married unless there is an actual marriage ceremony performed by someone licensed to perform marriages.

====Applying for spousal status====

A couple become spouses when they qualify as a "spouse" under whatever law applies; for most federal laws the couple must have lived together for at least one year, and for most provincial laws the couple must have lived together for at least two years. There's no application to make and no one to apply to. It's all about meeting the definition of "spouse."

====The accidental spouse====

It is not true that you become unmarried spouses simply by living with someone for long enough. You must be living together in a "marriage-like relationship" to become unmarried spouses; mere roommates will not become spouses by accident. There wouldn't be any frat houses if this wasn't the case.

Likewise, a dating couple won't become spouses if they have a child. They must also be living together in a "marriage-like relationship."

====Separation and the "legal separation"====

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in a unmarried relationship, a marriage, or you're just dating, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner leaves, boom, you're separated.

====Getting divorced====

Unmarried spouses do not need to be divorced. Once you've decided to separate, the relationship is over, regardless of how long the relationship may have been. There is no need to get a divorce because there's no marriage to terminate.

==Adoption and Assisted Reproduction==

Adoption and assisted reproduction are non-conventional methods of becoming parents provided for by BC law.

===Adoption===
Adoption is a Court process under the "[http://canlii.ca/t/84g5 Adoption Act]" which makes a non-biological parent of a child into his/her legal parent. That means they suddenly have all the rights and obligation of the child’s parent. If a biological parent is not expressly kept as a parent during this process, they no longer have any parental rights or obligations after an Adoption Order is made by the Supreme Court of BC. This means they don’t pay support, and the child is no longer entitled to inherit from them. They may be able to continue to have ‘access’ to have some sort of relationship with the child if either the Adoption Order, or some other Order made later, allows this. The child can inherit from the adopting parent once the Order is made. If the new parenting relationship breaks down, the adopting parent can claim the same rights as a biological parent to have the child reside with them, participate in parenting decisions, and to receive or pay child support. If this happens, disputes are handled in the same way as for biological parents, using the "[http://canlii.ca/t/7vbw Divorce Act]" or "[http://canlii.ca/t/8q3k Family Law Act]".

===Assisted Reproduction===
Assisted reproduction is a term that applies to an array of methods of having a baby in ways other than the traditional method. Examples include situations where there is only one parent who wishes to have a child, if one partner is incapable of having children, if same sex partners wish to have a child or if a couple wish to include another person as the parent of their child. The methods include egg donation, sperm donation and surrogacy.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''
* ''[http://canlii.ca/t/846b Marriage Act]''

===Links===

* [https://www.canada.ca/en/revenue-agency/services/child-family-benefits/child-family-benefits-calculator.html Canada child benefits calculator]
* [http://clicklaw.bc.ca/resource/2289 Legal Services Society's Family Law Website: FAQs about marriage, divorce and annulments]
* [http://clicklaw.bc.ca/resource/1257 Canadian Bar Association BC Branch: Script on getting married]
* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, Chapter 1, Types of Relationships]
* [http://clicklaw.bc.ca/resource/2376 Canadian Bar Association BC Branch: Introduction to family law]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], August 9, 2016}}

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[[Category:JP Boyd on Family Law]]

2016-08-09T15:09:34Z

Michael Sinclair:

2016-07-25T23:12:50Z

Michael Sinclair: Updating WESA link

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}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.

==Introduction==

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 ''[http://canlii.ca/t/7vb7 Income Tax Act]'' defines "spouse" as including people who have cohabited for one year, while the provincial ''[http://canlii.ca/t/84l7 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.

===Provincial legislation===

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 his or her 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 ''http://canlii.ca/t/8mhj'':

<blockquote><tt>[...] 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and</tt></blockquote>
<blockquote><blockquote><tt>(a) they were married to each other, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they had lived with each other in a marriage-like relationship for at least 2 years.</tt></blockquote></blockquote>

Here's the definition from s. 3 of the ''Family Law Act'':

<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote>
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) has done so for a continuous period of at least 2 years, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) except in Parts 5 and 6, has a child with the other person.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A spouse includes a former spouse.</tt></blockquote>

And here's the definition from the ''[http://canlii.ca/t/84gj Adult Guardianship Act]'':

<blockquote><tt>"spouse" means a person who</tt></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is living with another person in a marriage-like relationship;</tt></blockquote></blockquote>

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.

===Federal legislation===

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 ''[http://canlii.ca/t/7vjx Old Age Security Act]'':

<blockquote><tt>"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.</tt></blockquote>

Here's the definition from the ''[http://canlii.ca/t/7vb7#sec248 Income Tax Act]'':

<blockquote><tt>"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 </tt></blockquote>
<blockquote><blockquote><tt>(a) has so cohabited throughout the 12-month period that ends at that time, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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),</tt></blockquote></blockquote>
<blockquote><tt>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.</tt></blockquote>

"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship."

==="Common-law spouses"===

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.

===Living together...===

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 ''[http://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6428 (BCCA) our Court of Appeal endorsed these considerations:

*'''Shelter:'''
<blockquote>Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?</blockquote>
*'''Sexual and Personal Behaviour:'''
<blockquote>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?</blockquote>
*'''Services:'''
<blockquote>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?</blockquote>
*'''Social:'''
<blockquote>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?</blockquote>
*'''Economic Support:'''
<blockquote>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?</blockquote>
*'''Children:'''
<blockquote>What was the attitude and conduct of the parties concerning children?</blockquote>

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, ''[http://canlii.ca/t/5bpc Yakiwchuk v. Oaks]'', 2003 SKQB 124, expressed the difficulty of determining what is and what is not a "marriage-like" relationship this way:

<blockquote>"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."</blockquote>

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.

===Time limits===

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,
*mediation,
*collaborative settlement processes, and
*arbitration.

You'll notice that negotiation isn't on this list. As well, under the [http://canlii.ca/t/8rdx 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,
*lawyers,
*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.

==Government benefits==

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.

===Social assistance===

The ministry that administers the ''[http://canlii.ca/t/84l7 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.

===Employment Insurance===

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.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]''
* ''[http://canlii.ca/t/7vjx Old Age Security Act]''
* ''[http://canlii.ca/t/84l7 Employment and Assistance Act]''
* ''[http://canlii.ca/t/7vfd Canada Pension Plan]''

===Links===

* [http://clicklaw.bc.ca/resource/1639 Legal Services Society's Family Law Website: Property issues and common-law relationships]
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension]
* [http://clicklaw.bc.ca/resource/2291 Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], October 24, 2014}}

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Married Spouses and the Law on Marriage

2015-10-29T22:01:35Z

Michael Sinclair:

Grandparents and Extended Family Members

2014-10-24T23:59:53Z

Michael Sinclair:

{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{Clicklawbadge
| resourcetype = a resource for 
| link = [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren] '''and information on''' [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
}}People other than a child's parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason why someone else, like an unrelated long-term caregiver or a neighbour, couldn't also have an interest in the care and well-being of a child, or in having time with a child on a regular basis.

This section talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child, and child support.

==Introduction==

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children in only a few situations:

*where one or both of the guardians of the children are dead,
*where one or both of the guardians have abandoned the children or the care of the children,
*where there are serious concerns about the ability of the guardians to care for the children, or
*where they are being denied time or involvement with the children.

Their concerns are usually about supervising or managing the parenting of the children, or about getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking orders about parenting the children or having time with them. Where the children's parents are already in court about the children, that might be the federal ''[[Divorce Act]]'' if the parents are or were married, or the provincial ''[[Family Law Act]]'' whether they were married or not. If the children's parents are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

===The ''Divorce Act''===

Under s. 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application.

===The ''Family Law Act''===

The ''Family Law Act'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'' with children, and about people who are not guardians who have ''contact'' with a child.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding and ask that the new proceeding be ''joined'' to the court proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians in order to give them contact or other rights with respect to the children.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the parents or guardians and ask for orders about the children.

===Orders and agreements===

This section talks about the orders available to children's caregivers and extended family members, and is written on the assumption that someone who is interested in securing a right to involvement in a child's life will be going to court to secure that right. After all, if the child's parents or guardians were okay with the kind of involvement the person is looking for, there'd be no need to secure an order as they'd likely give their permission. In such circumstances, there's no reason at all why the child's parents or guardians and the caregiver or extended family member couldn't make an agreement on the issue instead of going to court.

A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might:

* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under s. 43(2) of the ''Family Law Act'',
* provide the caregiver or extended family member with specific rights of contact with the child, under s. 58(1) of the act, or
* if the child is living with the caregiver or extended family member, require one or more parents or guardians to provide child support to the caregiver or extended family member, under s. 147(1) of the act.

It's important to know, as you'll see further on in this section, that a child's guardians cannot make an agreement appointing anyone other than a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order.

==Rights and responsibilities of caregivers and extended family members==

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''[[Family Law Act]]''. If the child's parents are married and have an order made under the federal ''[[Divorce Act]]'', the child's caregivers and extended family members ''must'' make any applications about the child under that act and they must get the court's permission first.

Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support.

A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' because they're not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. Only spouses can ask for these orders.

===The care of children===

====The ''Divorce Act''====

When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', he or she will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.

To vary an order for custody or access, s. 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:

<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]].

====The ''Family Law Act''====

Whether a caregiver or extended family member is applying under the ''[[Family Law Act]]'' for guardianship, and the rights that go along with it, or for contact, he or she must show why it is in the best interests of the child for the court to make the order asked for. The court will usually extend a great deal of respect to the wishes of the child's guardians in considering these applications, and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the section [[Guardianship, Parenting Arrangements and Contact]] in the chapter on [[Children in Family Law Matters|Children]].

=====Guardianship, parental responsibilities and parenting time=====

Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.

Under s. 39, the people who are presumed to be the guardians of a child are:

#the child's parents, as long as they lived together after the child was born,
#a person who is a parent of a child under an assisted reproduction agreement, and
#a parent who "regularly cares" for the child.

A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by:

#applying for an order appointing him or her as a guardian of a child under s. 51,
#being appointed by as the standby guardian of a child under s. 55, or
#being appointed as the guardian of a child upon the death of a guardian under s. 53.

Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under s. 51.

Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about:

*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development.

=====Authorizations to exercise parental responsibilities=====

Under s. 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on his or her behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions about whom the child will live with and associate with,
*making decisions about the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental and other health-related treatments for the child,
*applying for a passport, licence or permit for the child,
*giving, refusing, or withdrawing consent for the child, if consent is required,
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
*requesting and receiving from third parties health, education, or other information respecting the child.

Authorizations like these are mostly used when the child needs to go somewhere else to attend school and the guardian needs to make arrangements for the child to be looked after, when the guardian is seriously ill but going to recover, and when the guardian is going to be out of commission while recovering from a surgery or treatment.

=====Contact with a child=====

Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

===Child Support===

====The ''Divorce Act''====

Under s. 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time.

====The ''Family Law Act''====

The ''Family Law Act'' says, at s. 147(1), that "each parent" has a duty to provide support for his or her child, as long as the child in question is a ''child'' as defined by s. 146 and hasn't become a spouse or withdrawn from the care of his or her parents under s 147(1). Under s. 149, the court can make an order requiring a parent to pay child support to "a designated person" on the application of "a person acting on behalf of a child:"

<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>

As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians.

According to s. 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including:

*the tables that are used to calculate the amount of child support payable,
*the exceptions that allow child support to be paid in an amount different than the usual table amount, and
*the rules about the payment of children's special expenses.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising grandchildren helpline] from the Parent Support Services Society of BC
* [http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents raising grandchildren]
* Department of Justice [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp Child Support Calculator]

{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], October 24, 2014}}

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Parents

2014-10-24T23:59:50Z

Michael Sinclair: