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 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 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 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

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.

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 chapter.

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.

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

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.

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 about spousal support or for orders under the Family Law Act 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.

STOPPED

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

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