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 have the right to be involved in raising the child. You may not have any other rights and obligations towards each other, but you do have the right to parent the child and the duty to pay child support.

This chapter is for unmarried couples who have had a child but who either didn't live together or lived together for less than two years. The next chapter, Unmarried Couples > Common-Law Relationships, is for unmarried couples who lived together for two or more years. This chapter provides a brief overview of the legal issues unmarried couples 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.

I. Introduction

The provincial Family Relations Act applies to couples that are or were in long-term relationships and to couples who weren't in long relationships but have had children together. Almost all relief the act talks about is not available to couples who aren't married and don't qualify as common-law spouses. As a result, people in short relationships will not be entitled to claim spousal support and are excluded from the parts of the act that deal with family assets.

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 common-law spouses.

A. Relief Available to Unmarried Couples Couples who neither married nor lived together for at least two years will have certain rights and obligations if they have children. In certain circumstances they may be able to make claims about property they both own or about property only one person owns. They will also be entitled to certain government benefits as a result of being parents.

1. Children There is no minimum length-of-relationship requirement for any claim involving children. A parent is a parent regardless of the nature of the relationship which produced the child.

A parent may apply for all of the relief available under the Family Relations Act that concerns children, from child support to custody to the various restraining orders that are available to protect a child. Issues about children are discussed at greater length further on in this chapter.

2. Property In a short relationship, each party will generally be entitled keep whatever he or she brought into the relationship. In the case of jointly owned assets, assets which both parties own and are registered in the names of both parties, like a house or a car, there is a legal presumption that each party has an equal interest in such assets, whether both parties contributed equally to their purchase or not.

It is possible, in certain circumstances, for someone who doesn't own an asset to nevertheless claim an interest in that asset under trust law. There is no minimum length-of-relationship requirement for claims made under the law of trusts.

Depending on the nature of the property claim, relief may be available in Provincial (Small Claims) Court, and you may be able to avoid having to go to the Supreme Court. Small Claims Court can hear straightforward claims, such as for the return of property or the payment of debt, but it cannot deal with trust claims. Only the Supreme Court can do that. You will also want to go to the Supreme Court if the value of the asset in dispute is more than $25,000.

A lot more information about trust claims to assets can be found in the Family Assets > Dividing Assets chapter.

3. Government Benefits The most important thing to know on this topic 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 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.

B. Relief Not Available to Unmarried Couples Couples who neither married nor lived together for at least two years are not entitled to make claims which depend on being married or having common-law status.

1. Spousal Support The Family Relations Act defines a "spouse" as someone who has lived in a marriage-like relationship with someone else for at least two years. As only spouses are eligible for spousal support, people in relationships for less than two years will not qualify to claim spousal support from the other party.

2. Property The Family Relations Act expressly excludes anyone who isn't legally married from the parts of the act which deal with the division of assets. As a result, all unmarried couples, including common-law couples, cannot rely on the act to divide family assets. The only kind of property claim an unmarried party can advance is through trust law when the asset at issue is not jointly owned.

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II. Child Support

Child support is payable by anyone who is the biological parent of a child, regardless of the brevity of the relationship which produced the child. The Family Relations Act says, at s. 88, that:

Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child. According to s. 93(1)(a) 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:

the tables that are used to calculate the amount of child support 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. Nothing in the Family Relations 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 which 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.

Additional information about child support and the Guidelines can be found in the Child Support section of this website. Additional information about paternity and paternity testing can be found in the chapter Other Family Law Issues > Paternity Issues.

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III. The Care and Control of Children

Just as the simple fact of being a biological parent triggers a responsibility to pay child support, it also triggers rights with respect to the parenting of the child. All parents, whether married, common-law or something else, have rights with respect to:

custody of the child, including having the child's primary residence; guardianship of the child; and, access to the child. All of these issues are canvassed at length in the Children section, which you should read for more information. There are, however, two important points you need to be aware of now. Sections of 27(5) and 34(1) of the Family Relations Act provide, in part, as follows:

27(5) Subject to section 28, if the father and mother of a child (a) have not been married to each other during the life of the child or 10 months before the child's birth, (b) are living separate and apart, and (c) do not share joint guardianship under this section or under an order of a tribunal of competent jurisdiction, the mother is the sole guardian unless a tribunal of competent jurisdiction otherwise orders. 34(1) Subject to subsection (2), the persons who may exercise custody over a child are as follows: (a) if the father and mother live together, the father and mother jointly; (b) if the father and mother live separate and apart, the parent with whom the child usually resides; What that all boils down to is this: if the unmarried parents of a child have separated, unless there is a court order to the contrary, the mother is presumed to have sole guardianship of the child, and the parent presumed to have custody of the child is the parent with whom the child usually lives.

Please read through the Children section for more detailed information about custody, guardianship, access and parenting after separation.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA, DA, Civil Marriage Act, marriage prohibited degrees act, Marriage Act,

Links

• bulleted list of linked external websites referred to in page