Parents: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = relationships}}
{{JP Boyd on Family Law TOC|expanded = relationships}}


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.
{{OKSUBSTANTIVE}}
 
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 participate in parenting the child and the duty to pay child support.


This page is for unmarried people who have had a child but who never lived together. 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.
This page is for unmarried people who have had a child but who never lived together. 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.
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==Introduction==
==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 children together. Almost all of the orders the act talks about aren't available to couples who aren't married and don't qualify as unmarried 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 property and family debt.
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 don't qualify as unmarried spouses. As a result, parents in short relationships will not be entitled to claim spousal support and are excluded from the parts of the act that deal with family property and family debt.


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.
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===
===Relief Available to Unmarried Couples===


Couples who neither married nor lived together will have certain rights and obligations toward one another if they have children. In certain circumstances they may be able to make claims about the property they both own or about property only one person owns, whether they lived together or not. They will also be entitled to certain government benefits as a result of being parents.
Couples who neither married nor lived together will have certain rights and obligations toward one another if they have children. One or both of them will also be entitled to certain government benefits as a result of being parents.


====Children====
====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.
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 Law Act'' that concerns 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 at greater length further on in this chapter.
A parent may apply for all of the relief available under the ''Family Law Act'' that concerns 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 at greater length further on in this page.


====Property====
====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 the parties contributed equally to their purchase or not.
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 the 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 the law of trusts and the law of equity. There is no minimum length-of-relationship requirement for claims of this nature.


====Government Benefits====
====Government Benefits====
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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.
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.


===Orders Not Available to Unmarried Couples===
===Relief 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 about spousal support or for orders under the ''Family Law Act'' about the division of property and debt.
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 spousal support or about the division of property and debt.


====Spousal Support====
====Spousal Support====
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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.
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.


STOPPED
==Child Support==


The only kind of property claim an unmarried party can advance is through trust law when the asset at issue is not jointly owned.
Child support is payable by anyone who is the parent of a child, regardless of the brevity of the relationship which 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.


==Child Support==
According to 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:
 
#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.


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:
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 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.


Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.
Additional information about child support and the Guidelines can be found in the Child Support chapter of this wiki. Additional information about paternity and paternity testing can be found in the ____ page.
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 Care of Children==
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.
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.


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


III. The Care and Control of Children
#the child's parents, as long as they lived together;
#a person who is a parent of a child under an assisted reproduction agreement; and,
#a parent who "regularly cares" for the child.


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:
In other words, if a couple had 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.  


custody of the child, including having the child's primary residence;
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:
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
#the parent who doesn't live with the child must settle for having contact with the child and not being able to participate in parenting the child;
(a) have not been married to each other during the life of the child or 10 months before the child's birth,
#the parent who doesn't live with the child must prove that he or she "regularly cares" for the child to be recognized as a guardian of the child who is entitled to participate in parenting the child; or,
(b) are living separate and apart, and
#the parent who doesn't live with the child must apply to be appointed as the guardian of a child under s. 51 of the ''Family Law Act''.
(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.
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, and to which must be attached recent MCFD and police records checks.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
FLA, DA, Civil Marriage Act, marriage prohibited degrees act, Marriage Act,
FLA


===Links===
===Links===

Revision as of 03:15, 25 March 2013

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Family Relationships
 · Married Spouses

 · Unmarried Spouses

 · Parents

 · Polyamorous Relationships

 · Grandparents and Extended Family

 · Adoption

 · Assisted Reproduction
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
v • d • e


 Substantive edits complete, but this page requires further editing.
Formatting and links need to be checked. Content has passed substantive edits and should be up-to-date for the new Family Law Act, but may contain mistakes, broken links, formatting problems and other errors.


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 participate in parenting the child and the duty to pay child support.

This page is for unmarried people who have had a child but who never lived together. 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 don't qualify as unmarried spouses. As a result, parents in short relationships will not be entitled to claim spousal support and are excluded from the parts of the act that deal with family property and family debt.

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.

Relief Available to Unmarried Couples

Couples who neither married nor lived together will have certain rights and obligations toward one another if they have children. One or both of them will also be entitled to certain government benefits as a result of being parents.

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 Law Act that concerns 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 at greater length further on in this page.

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 the parties contributed equally to their purchase or not.

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 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.

Relief 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 spousal support or about the division of property and debt.

Spousal Support

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.

Property

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.

Child Support

Child support is payable by anyone who is the parent of a child, regardless of the brevity of the relationship which 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.

According to 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 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 chapter of this wiki. Additional information about paternity and paternity testing can be found in the ____ page.

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 had 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:

  1. the parent who doesn't live with the child must settle for having contact with the child and not being able to participate in parenting the child;
  2. the parent who doesn't live with the child must prove that he or she "regularly cares" for the child to be recognized as a guardian of the child who is entitled to participate in parenting the child; or,
  3. the parent who doesn't live with the child 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, and to which must be attached recent MCFD and police records checks.

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

Links

  • bulleted list of linked external websites referred to in page


v • d • e
 
Chapters
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