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==Rights and Responsibilities of Unmarried Spouses==
==Rights and Responsibilities of Unmarried Spouses==


Providing a couple qualify as spouses, either party is entitled to seek an order for spousal support under the Family Relations Act. The same principles apply to spouses from common-law relationships as apply to married spouses: the party claiming support must be able to show that he or she is financially dependant on the other party because of the way the couple chose to live during the relationship, that he or she has suffered an economic disadvantage arising from the relationship, or that he or she has suffered an economic disadvantage arising from the breakdown of the relationship. The simple fact of having been in a common-law relationship does not guarantee that spousal support will be paid; the person seeking support must establish that he or she is entitled to support.
Providing a couple qualify as spouses, either party is entitled to seek an order for spousal support under the ''Family Law Act'' or to ask for an order that a stepparent pay child support for the benefit of the child of a spouse. The rules that apply to an unmarried spouse's claim for spousal support or for child support from a stepparent are exactly the same as those that apply to married spouses.


When someone is found to be entitled to receive spousal support, the amount of support payable and the length of time for which it will be paid will usually be calculated using the formulas set out in the Spousal Support Advisory Guidelines. The Advisory Guidelines determine the amount of support based on the difference between the spouses' incomes and determine the length of the payments based on either the duration of the spouses' cohabiting relationship or the age of the youngest child.
An unmarried couple who have lived together for at least two years can also ask for an order about the division of property and debt. The rules that apply to an unmarried spouse's claim for the division of property and debt are exactly the same as those that apply to married spouses.


See the section Spousal Support for more detailed information on spousal support and the Advisory Guidelines.
If an unmarried couple has had a child together, they are parents who are entitled, just because they are parents, to ask for orders about the care of the child and for child support. The rules that apply to determine guardianship, the distribution of parenting arrangements and contact are exactly the same as they are for any other parents, including parents who are married.


Back to the top of this chapter.
==Government Benefits==
 
III. Children and Child Support
 
There is no minimum length-of-relationship requirement for any application involving children, although there is sometimes a difference between being a natural parent and being parent as the law defines the term.
 
A natural parent is the biological parent of a child. A legal parent is someone who becomes a parent through the operation of a law, such as through adoption. Under s. 1 of the Family Relations Act, a legal parent also includes stepparents and the common-law spouse of a parent, if that person has contributed to the support of the child.
 
A. Natural Parents
A natural parent is a parent, and entitled to all of a parent's rights and obligations regardless of the nature of his or her relationship with the other parent.
 
Natural parents are entitled to all of the relief available under the Family Relations Act, from child support to custody, regardless of whether the parents were married or are common-law spouses. Natural parents who live together are presumed to share custody of their child.
 
See the section Children for more information.
 
B. Legal Parents
Where a parent lives with another person in a marriage-like relationship for two years or more and the other person has contributed to the financial support of the child, the other other person will be a parent for the purposes of the Family Relations Act, providing an application involving the child is brought within one year of the of end the relationship.
 
From the point of view of the natural parent, this means that the legal parent can be required to continue to contribute to the support of the child through the payment of child support.
 
From the point of view of the legal parent, this means that your relationship with the child can continue after the end of the relationship. While you might be obliged to pay child support, you can also bring a claim against the natural parent for things like custody, guardianship and access to the child. You will also be able to ask that your child support payments be reduced to reflect the child support obligation of the child's other natural parent.
 
See the sections Children and Child Support for more information.
 
C. Adoption
Common-law couples can apply to adopt a child together. A common-law spouse can also apply to adopt the other spouse's child, although the consent of the other natural parent of the child will usually be required.
 
See the chapter Other Family Law Issues > Adoption for more information.
 
D. Child Support
Child support will be payable by anyone who is the natural parent of a child, regardless of whether the relationship which produced the child qualifies as common-law or not. Someone who becomes a legal parent, like the common-law spouse of a parent, may also be required to pay child support. Section 88 of the Family Relations Act states 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 specified by the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply, including:
 
the tables that are used to calculate the amount of support;
the exceptions when child support can be paid in an amount different than what the tables would normally require; and,
the rules about the payment of children's special expenses.
For common-law couples, the Guidelines for child support are set by provincial laws, however, as the Guidelines that apply are the same as for married couples under the federal Child Support Guidelines, all of the same rules will apply.
 
See the section Child Support for more information.
 
Back to the top of this chapter.
 
IV. Assets and Debts
 
Anyone who is not married, including common-law spouses, is excluded from the parts of the Family Relations Act which deal with the division of family assets and pensions. As a result, a common-law spouse making a claim for the division of assets will have to rely on the law of trusts to obtain an order for a share of assets owned by the other spouse.
 
A. Constructive Trusts
The most common trust claim is a claim for a constructive trust. A constructive trust is one of the common law remedies for unjust enrichment. Unjust enrichment is proven by showing that:
 
one party has gained an benefit from the other party;
the other party has been deprived in some way related to the benefit; and,
there is no legal reason why the first party gained the benefit.
If these three criteria are met, the court may decide that the person gaining the benefit was unjustly enriched and impose a constructive trust to compensate the deprived party.
 
Think of it like this:
 
Partner A and Partner B have a very traditional relationship: A goes off and works at a cardboard box factory bringing home the bacon, while B stays home, maintains the household and cooks and cleans.
Partner A gets the benefit of Partner B's domestic services, which saves A from having to hire a cook and a housekeeper. At the same time, however, B could have sold exactly those services to someone else and been paid for working elsewhere as a launderer, cook or housekeeper. Of course, because of the romantic nature of their relationship A never paid B for his services and B never asked for payment.
Partner A has been unjustly enriched as a result of the services she gained from Partner B, and B lost the value he would have received by performing those services for someone else.
While constructive trusts are the most common way to establish interest in an asset, they are always difficult to prove and the results can be disappointingly small. For example, the court might look at Partner A and Partner B and say to B: "Ah, but you didn't pay any rent during your relationship, did you? You got free room and board in exchange for your work in the house, and we'll chop the value of that from your claim."
 
You should not get the impression that claims in constructive trust are doomed to fail. They're not. However, you must understand that they're generally not nearly as fruitful as claims under the Family Relations Act. Marriage is the only way to guarantee an interest in your partner's assets.
 
Trust claims are discussed in a lot more detail in the chapter Family Assets > Dividing Assets and in my blog.
 
B. Jointly-Owned Assets
In the case of jointly owned assets, that is, assets held in the name of both parties, there is a presumption that each party has an equal interest in the asset, regardless of how they may have contributed to the purchase of an asset.
 
Most of the time one party will keep the asset and buy the other person out by paying a cash amount equal to his or her interest in the property. If there isn't enough cash to make that a possibility, often the solution lies in selling the asset and splitting the sale proceeds.
 
It the parties own real estate together, they can also apply for an order that the property be sold and the proceeds divided between them under the provincial Partition of Property Act.
 
C. "Opting-In" to the Family Relations Act
Until 24 November 2011, common-law couples who had executed a cohabitation agreement were subject to the full benefit and misery of the portions of the Family Relations Act that govern the division of property for married couples as a result of s. 120.1:
 
(1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to
(a) the agreement ...
(2) In this section:
"agreement" means an agreement that would be
(a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or
(b) a separation agreement if the spouses were married to each other or separated after marriage.
"property" means property of a spouse that would be a family asset under Part 5 if the spouses were married to each other.
This section was repealed upon the new Family Law Act receiving royal assent and is no longer in force in British Columbia.
 
D. Debts
As far as debts are concerned, common-law partners will generally keep the personal debts they entered into the relationship with. They may be responsible for sharing the debts which were incurred afterwords, but only if the debt is connected with the relationship and wasn't spent on purely personal expenses. Debts incurred jointly will usually be shared between the parties.
 
However, if a couple has a joint debt, such as a bank loan which both parties signed, a joint credit card or a secondary credit card on the other party's account, both parties will continue to be responsible for the debt after their relationship has broken down. This has nothing to do with family law, it has to do with the bank wanting to secure payment of its loans. This can have some serious consequences, since the bank won't care who's more responsible for the debt than the other. If a payment is missed or the loan goes into default, both parties will be responsible and the credit ratings of both will suffer.
 
Back to the top of this chapter.
 
V. Government Benefits


The fact that a couple live together may entitle one or both of them to certain benefits paid by the federal or provincial government of they qualify as spouses. It can also expose them to the prospect of losing those benefits, most notably social assistance payments.
The fact that a couple live together may entitle one or both of them to certain benefits paid by the federal or provincial government of they qualify as spouses. It can also expose them to the prospect of losing those benefits, most notably social assistance payments.


A. Social Assistance
===Social Assistance===
The ministry which administers the Employment and Assistance Act and is responsible for social assistance often treats anyone living together as a couple as being in a common-law relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under the "spouse in the house" rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually return to treating you as single.
The ministry which administers the Employment and Assistance Act and is responsible for social assistance often treats anyone living together as a couple as being in a common-law relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under the "spouse in the house" rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually return to treating you as single.


B. Employment Insurance
===Employment Insurance===
 
EI applies the same standard to common-law couples as it does to married couples.
EI applies the same standard to common-law couples as it does to married couples.


C. Canada Pension Plan
===Canada Pension Plan===
 
Common-law couples may share in each other's pension benefits, however this sharing is not automatic. You must apply to share your CPP credits with your spouse.
Common-law couples may share in each other's pension benefits, however this sharing is not automatic. You must apply to share your CPP credits with your spouse.


There may be positive income tax consequences if you elect to share your CPP benefits. You will be eligible to share your pension if you have been living togther as a couple for at least one year and you are both at least 60 years old.
There may be positive income tax consequences if you elect to share your CPP benefits. You will be eligible to share your pension if you have been living togther as a couple for at least one year and you are both at least 60 years old.


D. Old Age Security Pension
===Old Age Security Pension===
 
The Old Age Security Pension is available to people who are at least 65 years old. You may be entitled to receive the amount for a couple rather than for two single people if you have been living together as a couple for at least one year.
The Old Age Security Pension is available to people who are at least 65 years old. You may be entitled to receive the amount for a couple rather than for two single people if you have been living together as a couple for at least one year.


E. Medical and Dental Benefits
===MSP and Medical and Dental Benefits===
 
The Medical Services Plan will cover your partner on your plan without any minimum limit on the length of time you've been living together, although you must have signed your partner up on the plan and must pay the family rate rather than the single rate.
The Medical Services Plan will cover your partner on your plan without any minimum limit on the length of time you've been living together, although you must have signed your partner up on the plan and must pay the family rate rather than the single rate.


If you or your partner receive any workplace medical or dental insurance coverage, check with the plan adminstrator to see if common-law partners are eligible beneficiaries under your plan.
If you or your partner receive any workplace medical or dental insurance coverage, check with the plan adminstrator to see if common-law partners are eligible beneficiaries under your plan.


F. ICBC Death Benefits
===ICBC Death Benefits===
 
A surviving common-law partner can apply to receive death benefits from ICBC when the other party is killed in a car accident, regardless of whose fault the accident was.
A surviving common-law partner can apply to receive death benefits from ICBC when the other party is killed in a car accident, regardless of whose fault the accident was.


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