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==Introduction== | ==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. | The legal rights and responsibilities that 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." | 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. | 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=== | ===Provincial legislation=== | ||
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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. | 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 | 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><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> | ||
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<blockquote><blockquote><tt>(b) they had lived with each other in a marriage-like relationship for at least 2 years.</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 | Here's the definition from section 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><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote> | ||
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<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> | <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 ''Income Tax Act'': | 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><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>(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 ( | <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> | <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> | ||
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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. | 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 | 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 section 3 of the ''[[Family Law Act]]''. | ||
==Qualifying as an unmarried spouse== | ==Qualifying as an unmarried spouse== | ||
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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. | 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: | 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:''' | *'''Shelter:''' | ||
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===Time limits=== | ===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. | 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: | However, there are three important things you need to know about claims for spousal support and claims for child support against stepparents: | ||
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====Effect of dispute resolution processes==== | ====Effect of dispute resolution processes==== | ||
Under | Under section 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" or "a prescribed process." 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 | First, the parties have to be engaged in a process of ''family dispute resolution''. That term is defined in section 1 of the act as including: | ||
*the services of a family justice counsellor, | *the services of a family justice counsellor, | ||
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*arbitration. | *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 | 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 section 1. | ||
Second, the parties have to be engaged in one of these processes with a ''family dispute resolution professional''. This term is defined in | Second, the parties have to be engaged in one of these processes with a ''family dispute resolution professional''. This term is defined in section 1 of the act as including: | ||
*family justice counsellors, | *family justice counsellors, | ||
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*arbitrators who meet the training requirements set out in the Family Law Act Regulation. | *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. | 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. | 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. | ||
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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. | 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. | 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== | ==Government benefits== | ||
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===Canada Pension Plan=== | ===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. | 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. That application must be made within 48 months of the date of separation unless both parties consent in writing to waive the 48-month time limit. | ||
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. | 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. | ||
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* ''[[Family Law Act]]'' | * ''[[Family Law Act]]'' | ||
* [http://canlii.ca/t/8rdx Family Law Act Regulation] | |||
* ''[[Divorce Act]]'' | * ''[[Divorce Act]]'' | ||
* ''[http://canlii.ca/t/7vb7 Income Tax Act]'' | * ''[http://canlii.ca/t/7vb7 Income Tax Act]'' | ||
* ''[http://canlii.ca/t/ | * ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' | ||
* ''[http://canlii.ca/t/84gj Adult Guardianship Act]'' | * ''[http://canlii.ca/t/84gj Adult Guardianship Act]'' | ||
* ''[http://canlii.ca/t/7vjx Old Age Security Act]'' | * ''[http://canlii.ca/t/7vjx Old Age Security Act]'' | ||
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===Links=== | ===Links=== | ||
* [http://clicklaw.bc.ca/resource/ | * [http://clicklaw.bc.ca/resource/4646 Legal Services Society's Family Law website's common questions on Finances & Support] | ||
** See "How is property divided when a common-law relationship ends? Our house has both our names on the deed. If one person paid all of the down payment, how should the house value be split? | |||
" under the heading "Common questions" | |||
* [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension] | * [http://clicklaw.bc.ca/resource/2204 Canada Pension Plan Survivor's Pension] | ||
* [http://clicklaw.bc.ca/resource/ | * [http://clicklaw.bc.ca/resource/4648 Legal Services Society's Family Law website's information page "Going through separation"] | ||
** See "Proving you're separated if you and your spouse still live together" | |||
{{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], | {{REVIEWED | reviewer = [[Stephen Wright]] and [[Michael Sinclair]], April 17, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
