Other Unmarried 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 may have the right to participate in raising the child. Paying child support is an obligation that comes from being a parent, but actually parenting a child is a privilege, not a right.
This section is for unmarried people who have had a child but who never lived together, and, as result, are not spouses. 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.
- 1 Introduction
- 1.1 Orders available to unmarried couples
- 1.2 Orders not available to unmarried couples
- 1.3 Agreements available to unmarried couples
- 1.4 Government benefits
- 2 Rights and responsibilities of unmarried parents
- 3 Supporting parents
- 4 Resources and links
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 who don't qualify as unmarried spouses. As a result, parents who didn't live together aren't entitled to ask for spousal support and are excluded from the parts of the act that talk about sharing family property and family debt. What they can ask for are orders about the care of their children and about child support.
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
Under the Family Law Act, couples who neither married nor lived together have certain rights and obligations toward one another if they have a child. One or both of them will also be entitled to certain government benefits as a result of being parents, but those rights don't come from the Family Law Act, they come from programs like the provincial BC Early Childhood Tax Benefit (to be replaced by the BC Child Opportunity Benefit in 2020) and the federal Income Tax Act.
Children and child support
There is no minimum length-of-relationship requirement for any claim under the Family Law Act involving children. A parent is a parent, regardless of the sort of relationship that produced the child.
A parent may apply for all of the orders available under the Family Law Act that concern 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 in a little more detail further on in this section.
In a short relationship, each person will generally be entitled to keep whatever they brought into the relationship and anything they received as a gift from the other person. If there are any jointly owned assets ― property that both people own and that are registered in both names ― like a house or a car, there is a legal presumption that each owner is entitled to an equal interest in the asset, whether the couple contributed equally to its purchase or not.
Although unmarried couples who lived together for less than two years, or didn't live together at all, aren't able to make any claims about property owned only by one of them under the Family Law Act, they may be able to make a claim under certain common law principles. These are discussed in more detail in the first section of the Property & Debt chapter, under the heading "Property claims and people who aren't spouses".
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 under the Family Law Act about:
- spousal support,
- child support for the benefit of stepchildren, or
- the division of family property and family debt.
Only people who qualify as married or unmarried spouses may ask for orders on these subjects.
Section 3 of the Family Law Act defines a spouse for the purpose of claims for spousal support as someone who is married, 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. Since only spouses are eligible for spousal support, people who do not meet these criteria cannot apply for spousal support.
Child support for stepchildren
Stepparents can be required to pay child support for the benefit of their stepchildren. However, section 146 of the Family Law Act defines a stepparent as someone who is "a spouse of the child's parent." As a result, someone in an unmarried relationship that doesn't qualify as a spousal relationship cannot be made to pay child support for the other person's children from a previous relationship.
Family property and family debt
The Family Law Act defines a spouse for the purposes of claims about property and debt as someone who is married or has lived in a marriage-like relationship with someone else for at least two years. Only people who meet this narrower definition of spouse may ask for orders about the division of property and debt under the act.
Agreements available to unmarried couples
A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. People can make any kind of contract they want, as long as the contract isn't made for an illegal purpose and doesn't require a person to do something illegal. There's no reason, for example, why two people couldn't make a contract requiring one of them to wear purple shirts on Thursdays in exchange for a box of ants. Although it's hard to imagine why anyone would want such a contract, it's still possible and it would be enforceable in court provided that the agreement was properly written out and signed.
This section has just gone through the sorts of orders unmarried couples can ask for under the Family Law Act. Essentially, we're talking about orders about the care of children and the payment of child support. If an unmarried couple was going to have an agreement, it would probably talk about these two issues. However, like the contract about shirts and ants, there's no reason why an unmarried couple couldn't make an agreement that also talked about the payment of spousal support and the division of family property and family debt. Although the couple are under no legal obligation to make a contract about these things, they can do so if they want.
The most important thing to know about government benefits 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 provincial supports, the Canada Child Benefit, and the National Child Benefit Supplement 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.
The federal government has a helpful online child benefits calculator that estimates the amount of benefits available from federal and provincial sources based on information you provide.
Rights and responsibilities of unmarried parents
Couples who are not married and have not lived together but have had a child together can ask for orders about the care of their child and child support for their child under the provincial Family Law Act.
Child support is payable by anyone who is the parent of a child, regardless of the nature or brevity of the relationship that produced the child. The Family Law Act says, at section 147, that "each parent" has a duty to provide support for their child.
Under section 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.
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 that 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.
You can find additional information about child support and the Guidelines in the chapter Child Support. You can find additional information about paternity and paternity testing in the chapter Other Family Law Issues, in the section Parentage and Assisted Reproduction.
The care of children
Under section 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 but 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, counsellors, coaches, and so on.
Under section 39, the people who are presumed to be the guardians of a child are:
- 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.
In other words, if a couple has 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 they regularly care 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 the parent who isn't a guardian has three choices. They:
- must settle for having contact with the child and not being able to participate in parenting the child,
- must prove that they regularly care for the child, in order to be recognized as a guardian of the child who is entitled to participate in parenting the child, or
- must apply to be appointed as the guardian of a child under section 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. The person must also provide recent MCFD and police records checks. Applications for appointment as a guardian are discussed in more detail in the Guardianship, Parenting Arrangements and Contact section of the Children chapter, under the heading "Being a guardian and becoming a guardian."
The old Family Relations Act used to allow parents to sue their adult children for support. That part of the Family Relations Act was repealed on 24 November 2011 and is not carried forward in the new Family Law Act. As a result, claims for parental support may no longer be brought in British Columbia.
- Canada child benefits calculator
- Canada Revenue Agency website "Overview of child and family benefits"
- BC Government website "Family Benefits"
- Legal Services Society's Living Together or Living Apart, chapter 1 on types of relationships
- Dial-A-Law Script "Introduction to Family Law"
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Wright and Michael Sinclair, April 17, 2019.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court," and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
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 duty, whether contractual, moral, or legal in origin, to do or not do something. See "duty."
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," "natural parent," and "stepparent."
In law, the duty a lawyer has to keep their client’s information confidential, including communications between the lawyer and client and advice given to the client; the client's right to have their confidential communications kept secret and protected from disclosure. See "lawyer."
Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."
A payment made by one spouse, the payor, to the other spouse, the recipient, to help with their day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.
A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property."
A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
A voluntary transfer of property from one person to another, without expectation of payment or reward. Gifts to one spouse do not usually qualify as family property, and are excluded from the pool of property to be divided. See "donee," "donor," "excluded property," and "family property."
Something which can be owned. See "chattels" and "real property."
The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec.
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, 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 but 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 without marrying. See "cohabitation," "marriage," and "spouse."
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 the care and control of a child under both the Divorce Act and the Family Law Act. See "parent" and "spouse."
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.
An agreement between two or more persons about family law issues that have arisen or may arise, dealing with their respective rights and obligations to one another, which the parties expect will be binding on them and be enforceable in court. Typical family law agreements include marriage agreements, cohabitation agreements, and separation agreements.
An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.
An act; a statute; a written law made by a government. See "regulations."
Short for the Child Support Guidelines, a regulation to the federal Divorce Act, adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved.
The amount of child support payable under the Child Support Guidelines tables. See "Child Support Guidelines."
A scientific test performed to determine the biological parentage of a child, usually performed by the genetic testing of the blood or saliva of the alleged parents and the child.
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 "guardian."
A term under the Family Law Act which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."
A term under the Family Law Act that describes the visitation rights of a person, who is not a guardian, with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."
A person charged with the legal care of someone under a legal disability. A term under the Family Law Act referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities," and "parenting time."