Family Relationships

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

This 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 married relationships, unmarried spousal relationships, and other unmarried relationships.

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 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, 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 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, one 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. Women who hadn't married, on the other hand, 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 are 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 Civil Marriage Act.

If there's a difference anymore between being in a married spousal relationship and being in an unmarried spousal relationship, that is a difference 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 signals a personal dedication to nurturing the relationship and a willingness to stick it out through the good times and the bad.

At law, the most significant difference between married and unmarried spousal relationships is that only married spouses need a divorce or 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 twelve or a male spouse was under the age of fourteen (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.

More information about void marriages, voidable marriages, and annulment is available in the section on 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:

1. the spouses have been separated for at least one year,
2. one of the spouses committed adultery, or
3. 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:

1. people who have lived in a marriage-like relationship for at least two years, and
2. 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 any unmarried relationship, 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.

The 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.

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 that makes the donor a parent, and
• a surrogate mother is a parent, unless everyone has signed an assisted reproduction 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 interest in 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 interest 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:

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.

Where a child's guardians are no longer in the picture or if there's a concern about the child's welfare with his or her 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.

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.

Couples who are not spouses, not parents, and do not live together cannot apply for protection orders.

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

A lot of people seem to labour under certain misconceptions about what marriage, unmarried relationships, separation and divorce actually involve. 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 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.

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 are likely to care. There's a lot more information about new relationships after separation in the Separation section.

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.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Civil Marriage Act
• Marriage Act

Links

• Canada child benefits calculator
• Legal Services Society's Family Law Website: FAQs about marriage, divorce and annulments
• Canadian Bar Association BC Branch: Script on getting married
• Legal Services Society's ‘’Living Together or Living Apart’’, Chapter 1, Types of Relationships
• Canadian Bar Association BC Branch: Introduction to family law