Children Born to Unmarried Spouses (No. 147)

This script discusses issues relating to the children of unmarried parents who qualify as spouses. The topics discussed include:

• child support
• guardianship and the care of children
• adopting a child or your spouse’s child
• safety concerns

Who is a “spouse”?

Under the provincial Family Law Act, “spouse” includes people who are married to each other as well as:

• people who have lived together in a marriage-like relationship for at least two years; and,
• except for the parts of the act about property and debt, people who have lived together in a marriage-like relationship for less than two years if they have had a child together.

Does an unmarried spouse have to pay child support?

The unmarried parents of a child, whether they’re spouses or not, each have a legal responsibility to support their child. This obligation lasts until their child reaches the age of majority, 19 in BC. They may also have to support their child after the age of 19 if the child is financially dependent on them because of disability or illness, or because the child is pursuing post-secondary education.

What about support for a stepchild?

A person who is the spouse of a parent may have to pay support for the parent’s child. A stepparent who qualifies as a “parent” as defined by the provincial Family Law Act has this obligation. The definition of a parent includes the unmarried spouse of a parent as long as the spouse has contributed to the support of the child for at least one year and the claim for child support is brought within one year of the stepparent’s last contribution to the support of the child.

The rules on child support are a bit different for stepparents. To find out more about child support upon separation, go to script 117 on “Child Support”.

How are the children cared for if you break up?

If you and your spouse cannot decide who the children should live with or how their time should be shared, then a mediator can help you decide, or a judge will make a decision according to what’s in the best interests of the children. The court can also make decisions about how often the children will see each parent (called parenting time or contact) and how parenting decisions about the children will be made (called parental responsibilities). For more information, refer to script 140 on “Children Born outside Marriage” and script 142 on “Custody and Access, Guardianship, Parenting Arrangements and Contact”.

Can unmarried spouses adopt a child?

Unmarried spouses have the same rights as married spouses to adopt a child. Refer to script 145 on “Adoption” for more information on this topic.

What if you want to adopt your spouse’s child?

You can only adopt your spouse’s child if the child’s other parent is prepared to give up his or her rights. If the other parent is agreeable, you can adopt your spouse’s child. It’s important to know that when you adopt a child, you get all of the obligations of a parent of the child, including the obligation to pay child support and contribute to the cost of the child’s expenses. Note that a child 12 or older must be willing to be adopted and has to give consent.

What if you want to place your child for adoption?

Usually both parents have to agree to the adoption. Before a court will make an adoption order, the judge must be satisfied that the other parent has been told about the adoption and has been given an opportunity to say whether he or she agrees. For more information, refer to script 145 on “Adoption”.

What rights do you have to be kept safe from an abusive ex-spouse?

If you or your children are being threatened by your former spouse, you can apply for a protection order under the Family Law Act and you can file a report with the police. You can get a court order saying that your spouse must stay away from you and your children. If your spouse breaks this order, he or she can face criminal charges. For more information, refer to:

• script 217 on “Applying for a Peace Bond and Filing Assault Charges”
• script 155 on “Family Violence”
• script 156 on “Reporting Suspected Child Abuse”

Can you use your spouse’s last name?

Yes. In fact, you can call yourself any name you choose, so long as you don’t do it to break the law or to cheat anyone. However you won’t be able to get government identification documents in any name other than your legal name. You can apply for a legal name change if you wish. For more information, refer to script 161 on “Changing Your Name”.

Can your children use your spouse’s last name?

You can also use whatever last name you want for your children. You can apply to legally change the children’s last name to your spouse’s last name, as long as your spouse doesn’t mind. The Director of Vital Statistics can process a change of name for your children even if the children’s other parent doesn’t consent, but you have to convince the Director that the children’s names should be changed. Children over the age of 12 also have to agree to the legal change of their name.

For more information on this, see the Vital Statistics Agency’s website at www.vs.gov.bc.ca, or call the main office in Victoria at 250.952.2681.

Where can you get help or more information?

• Family Justice Counsellors in Family Justice Centres throughout BC can help you with custody, child support, and related issues. Their services are free. Call 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria, or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you.
• Also see the Family Justice website at www.ag.gov.bc.ca/family-justice.
• Read the booklet “Living Together or Living Apart: Common-law Relationships, Marriage, Separation, and Divorce” by the Legal Services Society. BC and available free on their website at www.legalaid.bc.ca. To find it, click “Our publications”, then under “I want to find a publication by subject” click “Family law”.
• Also see the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca — under “Your legal issue,” click “Common-law relationships”.
• Visit the wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, at wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law.

[updated November 2014]

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In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

Someone who is a spouse by the operation of a statute. Under the Family Law Act, unmarried spouses are people who have lived together in a marriage-like relationship for at least two years, or, for all purposes of the act other than the division of property or debt, who have lived together for less than two years but have had a child together. See "marriage-like relationship," "marriage" and "married spouse."

A duty, whether contractual, moral, or legal in origin, to do or not do something. See "duty."

The age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant."

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

The spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and decisions about the care and control of the stepchildren under both the Divorce Act and the Family Law Act. See "parent" and "spouse."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "decision-making responsibility" and "guardian."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

In family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

An order available under the Family Law Act for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting, or stalking a person, as well as orders restraining someone from going to a person's home, place of employment, or school. See "application," "ex parte" and "restraining order."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

A judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.