Parents

Your relationship may have been brief, but if you and your boyfriend or girlfriend have had a child together, you are both responsible for meeting the child's financial needs and you both may have the right to participate in raising the child. Paying child support is an obligation that comes from being a parent, but actually parenting a child is a privilege not a right.

This section is for unmarried people who have had a child but who never lived together, and, as result, are not spouses. It talks about the legal issues unmarried parents may have to deal with and those they don't, and discusses the two most common issues couples like this have to deal with: child support and the care of children.

Introduction

The provincial Family Law Act applies to couples that are or were in long-term cohabiting relationships and to couples who weren't in long relationships but have had a child together. Almost all of the orders the act talks about aren't available to couples who aren't married and who don't qualify as unmarried spouses. As a result, parents who didn't live together aren't entitled to ask for spousal support and are excluded from the parts of the act that talk about sharing family property and family debt. What they can ask for are orders about the care of their children and about child support.

The federal Divorce Act only applies to people who are or were married to each other; it doesn't apply to unmarried couples, including couples who qualify as unmarried spouses.

Orders available to unmarried couples

Under the Family Law Act, couples who neither married nor lived together have certain rights and obligations toward one another if they have a child. One or both of them will also be entitled to certain government benefits as a result of being parents, but those rights don't come from the Family Law Act, they come from legislation like the provincial Income Tax (BC Family Bonus) Regulation and the federal Income Tax Act.

Children and child support

There is no minimum length-of-relationship requirement for any claim under the Family Law Act involving children. A parent is a parent, regardless of the sort of relationship that produced the child.

A parent may apply for all of the orders available under the Family Law Act that concern children, from child support to guardianship to the various restraining orders that are available to protect a child from harm. Issues about children are discussed in a little more detail further on in this section.

Property

In a short relationship, each person will generally be entitled to keep whatever he or she brought into the relationship and anything he or she received as a gift from the other person. If there are any jointly owned assets ― property that both people own and that is registered in both names ― like a house or a car, there is a legal presumption that each owner is entitled to an equal interest in the asset, whether the couple contributed equally to its purchase or not.

Although unmarried couples who lived together for less than two years, or didn't live together at all, aren't able to make any claims about property owned only by one of them under the Family Law Act, they may be able to make a claim under certain common law principles. These are discussed in more detail in the first section of the Property & Debt chapter, under the heading "Property claims and people who aren't spouses".

Orders not available to unmarried couples

A couple who have a child but did not live together, or who lived together for less than two years and did not have a child, cannot ask for orders under the Family Law Act about:

• child support for the benefit of stepchildren,
• spousal support, or
• the division of family property and family debt.

Only people who qualify as married or unmarried spouses may ask for orders on these subjects.

Spousal support

Section 3 of the Family Law Act defines a "spouse" for the purposes of claims for support as someone who has lived in a marriage-like relationship with someone else for at least two years or for less than two years if the couple has had a child together. As only spouses are eligible for spousal support, people who do not meet these criteria cannot apply for spousal support.

Child support for stepchildren

Stepparents can be required to pay child support for the benefit of their stepchildren. However, s. 146 of the Family Law Act defines a stepparent as someone who is "a spouse of the child's parent." As a result, someone in an unmarried relationship that doesn't qualify as a spousal relationship cannot be made to pay child support for the other person's children.

Family property and family debt

The Family Law Act defines a "spouse" for the purposes of claims about property and debt as someone who has lived in a marriage-like relationship with someone else for at least two years. Only spouses may ask for orders about the division of property and debt.

Agreements available to unmarried couples

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. People can make any kind of contract they want, as long as the contract isn't made for an illegal purpose and doesn't require a person to do something illegal. There's no reason, for example, why two people couldn't make a contract requiring one of them to wear purple shirts on Thursdays in exchange for a box of ants. Although it's hard to imagine why anyone would want such a contract, it's still possible and it would be enforceable in court provided that the agreement was properly written out and signed.

This section has just gone through the sorts of orders unmarried couples can ask for under the Family Law Act. Essentially, we're talking about orders about the care of children and the payment of child support. If an unmarried couple was going to have an agreement, it would probably talk about these two issues. However, like the contract about shirts and ants, there's no reason why an unmarried couple couldn't make an agreement that also talked about the payment of spousal support and the division of family property and family debt. Although they're under no legal obligation to make a contract about these things, they can if they want.

Government benefits

The most important thing to know about government benefits is that most federal legislation defines a spouse as someone who has been in a cohabiting relationship for at least one year, as opposed to British Columbia's legislation which generally requires a two-year cohabiting relationship to qualify. As a result, someone in a relationship of at least one year may qualify for any federal benefits that depend on a spousal relationship although they probably won't qualify for provincial benefits. People in a relationship of less than one year will not usually qualify for any benefits at all.

Benefits relating to children, like the BC Family Bonus, the Canada Child Tax Benefit, the National Child Benefit Supplement and the Universal Child Care Benefit, are available to anyone who is a parent, regardless of the nature of that person's relationship with the other parent. The website of the Canada Revenue Agency has a lot of information about federal and provincial benefits.

The federal government offers an online Canada child benefits calculator that estimates the amount of benefits available from federal and provincial sources based on information you provide.

Rights and responsibilities of unmarried parents

Couples who are not married and have not lived together but have had a child together can ask for orders about the care of their child, and child support for their child under the provincial Family Law Act.

Child support

Child support is payable by anyone who is the parent of a child, regardless of the brevity of the relationship that produced the child. The Family Law Act says, at s. 147, that "each parent" has a duty to provide support for his or her child.

Under s. 150(1) of the act, child support is to be paid in the amount determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to unmarried parents, including:

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

Nothing in the Family Law Act or the Child Support Guidelines allows a parent to escape paying support through some quirk in the circumstances under which the child was conceived or whether the pregnancy was planned or not. The only question that may be left open is whether or not the person being asked to pay child support is the parent of the child for whose benefit support is sought. If that's an issue, a paternity test can always be taken.

You can find additional information about child support and the Guidelines in the chapter Child Support. You can find additional information about paternity and paternity testing in the chapter Other Family Law Issues within the section Parentage and Assisted Reproduction.

The care of children

Under s. 40(1) of the Family Law Act, only people who are the guardians of a child have parental responsibilities and parenting time in relation 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:

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

In other words, if a couple has had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless he or she "regularly cares" for the child.

A parent who isn't a guardian can become a guardian if the child's other guardians, who may be just the other parent, agree that the parent should be a guardian. If the parents can't agree on this, then the parent who doesn't live with the child has three choices. He or she:

1. must settle for having contact with the child and not being able to participate in parenting the child,
2. must prove that he or she "regularly cares" for the child, in

order to be recognized as a guardian of the child who is entitled to participate in parenting the child, or

1. must apply to be appointed as the guardian of a child under s. 51 of the Family Law Act.

Applications for appointment as guardian are difficult as the person who is making the application must provide a special kind of affidavit that talks about the children who are and have been in the person's care, any civil or criminal court proceedings that might impact on the safety of a child, and any history of involvement with the Ministry for Children and Family Development (MCFD). The person must also provide recent MCFD and police records checks.

Resources and links

Legislation

• Family Law Act

Links

• Canada child benefits calculator
• Canada Revenue Agency Website: Child and family benefits
• BC Family Bonus
• Legal Services Society's ‘’Living Together or Living Apart’’, Chapter 1, Types of Relationships
• Canadian Bar Association BC Branch: Introduction to family law

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 24, 2013.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.