Difference between revisions of "Children Born to Unmarried Spouses (No. 147)"

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
This script discusses issues relating to the children of unmarried parents who qualify as spouses. The topics discussed include:
A couple who lives together in a marriage-like relationship and has a child together are “spouses” under the law. Learn how this impacts child support and other family law issues.  


*Who is a spouse
==Understand the legal framework==
*child support
*guardianship and the care of children
*adopting a child or your spouse’s child
*safety concerns


==Who is a “spouse”?==
===A child born to unmarried spouses===
Under the provincial ''Family Law Act'', the term “spouse” includes:
BC’s [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth Family Law Act]'' defines the term “'''spouse'''” as including married spouses as well as:
*People who have lived together in a marriage-like relationship for at least two years.
*People who have lived together in a marriage-like relationship for less than two years and have had a child together. (In this case, you aren’t considered a spouse when it comes to property, debt or pensions.)


*people who are married to each other;
A couple is seen as living in a “'''marriage-like relationship'''” if they present themselves as a family unit to family and friends, and conduct their financial and household affairs as a couple.  
*people who have lived together in a marriage-like relationship for at least two years; and,
*people who have lived  together in a marriage-like relationship for less than two years, but have  a child together. (Note: this category of spouses do not have rights to division of property, debt and pension).  


==Does an unmarried spouse have to pay child support?==
There is no legal difference in the status of a child born to someone who is a married spouse, an unmarried spouse, or not considered a spouse under the law.  
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.  


==Does a step-parent have to pay child support for a stepchild?==
{| class="wikitable"
A stepparent is a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life. Once a step-parent and the child’s parent are separated, a step-parent may have an obligation to pay child support for the step-child if:
|align="left"|'''Tip'''
“Common-law relationship” is the term many people use to describe unmarried couples who live together in a marriage-like relationship. But it’s not a term used in the ''Family Law Act'' or the ''Divorce Act''. These laws just say '''spouse'''.
|}


===The child’s last name===
The parents may choose any last name they like for a child, if they agree. Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-479/latest/rsbc-1996-c-479.html#sec4_smooth BC law], if the parents do not agree on a last name for a child, the child’s last name will consist of the parents’ surnames hyphenated or combined in alphabetical order.
A parent can apply to legally change their child’s last name. They need the consent of all guardians of the child. If the parent wants to change the child’s name to their spouse’s last name, the spouse must also consent.
A child who is age 12 or over has to agree in writing to the legal change of their name.
An applicant for a name change can proceed without a required consent with the approval of the Vital Statistics Agency. For more on the name change process, see the Vital Statistics Agency’s website at [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics gov.bc.ca/vitalstatistics], or call 250-952-2681 in Victoria, or toll-free 1-888-876-1633 elsewhere in BC.
===An unmarried spouse’s obligation to pay child support===
'''Child support''' is a right of the child. Each parent has a legal duty to provide support for their child. That is so whether the parents are married spouses, unmarried spouses, or not considered spouses.
The obligation to support a child lasts until the child reaches the age of majority, 19 in BC. The obligation may continue after the child reaches 19 if the child is financially dependent on the parent because of disability or illness, or because the child is pursuing post-secondary education.
For more on these responsibilities, see our information on [[Child Support (Script 117)|child support (no. 117)]].
{| class="wikitable"
|align="left"|'''Tip'''
Even if you never lived with your child or child’s other parent, you still have a legal responsibility to contribute to your child’s support.
|}
===A stepparent’s obligation to pay child support for a stepchild===
Under the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec146_smooth law in BC], a '''stepparent''' is a person who is a spouse of the child's parent and lives with the child's parent and the child.
A stepparent may have a duty to provide support for a stepchild if:
*the stepparent contributed to the support of the child for at least one year, and
*the stepparent contributed to the support of the child for at least one year, and
*the claim for child support is made against the step-parent within one year of the stepparent’s last contribution to the support of the child
*a claim for child support is made against the stepparent within one year of their last contribution.
 
The stepparent's obligation to pay child support is secondary to that of the child's parents and guardians. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long they lived together. A number of factors come into play, and it is a good idea to consult a lawyer if a stepparent is involved.
 
To find out more about child support on separation, see our information on [[Child Support (Script 117)|child support (no. 117)]]. 
 
===How the child is cared for if you break up===
If you and your child’s other parent break up, you need to figure out how you will make decisions about the child, where the child is going to live, and how much time the child will spend with each parent.


The stepparent's obligation to pay child support is secondary to that of the child's parents and guardians, and extends only as appropriate on consideration of a number of factors. The rules on child support are a bit different for stepparents, and it is best to consult a lawyer to find out more
If you can’t agree on these issues, you might consider '''mediation'''. Mediation is a process where the people in a conflict meet with a neutral person (a mediator), who helps them find a solution they agree on.


To find out more about child support upon separation, go to script [[Child Support (Script 117)|117]] on “Child Support”.
If you still can’t come to an agreement, one of you may decide to bring a court action. A judge will make a decision according to what’s in the best interests of the child. The court can also make decisions about how often the child will see each parent (called '''parenting time''' or '''contact''') and how parenting decisions about the child will be made (called '''parental responsibilities'''). For more, see our information on [[Custody and Access, Guardianship, Parenting Arrangements and Contact (Script 142)|custody and access, guardianship, parenting arrangements, and contact (no. 142)]].  


==How are the children cared for if you break up?==
===Adoption and unmarried spouses===  
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 [[Children Born Outside Marriage (Script 140)|140]] on “Children Born outside Marriage” and script [[Custody and Access, Guardianship, Parenting Arrangements and Contact (Script 142)|142]] on “Custody and Access, Guardianship, Parenting Arrangements and Contact”.  
Unmarried spouses have the same rights as married spouses to '''adopt a child''. For more on the adoption process, see our information on [[Adoption (Script 145)|adoption (no. 145)]].


==Can unmarried spouses adopt a child?==
====If you want to adopt your spouse’s child====
Unmarried spouses have the same rights as married spouses to adopt a child. Refer to script [[Adoption (Script 145)|145]] on “Adoption” for more information on this topic.
You can adopt your spouse’s child from another relationship if the child’s other parent agrees.
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.  


==What if you want to adopt your spouse’s child?==
A child who is age 12 or over must consent to being adopted.   
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 agrees, 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 who is 12 years old or older must agree to be adopted and has to give consent.  There are circumstances under which the consent of the parents is not required; refer to script [[Adoption (Script 145)|145]] on “Adoption” for more information on this topic.   


==What if you want to place your child for adoption?==
====Placing 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 [[Adoption (Script 145)|145]] on “Adoption”.
Usually both birth parents have to agree to place a child for adoption. A birth mother’s consent to an adoption is required unless the child is in the permanent care of the child welfare authorities.  


==What rights do you have to be kept safe from an abusive ex-spouse?==
A biological father’s consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be located or if to do so is in the child’s best interests.
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 [[Applying for a Peace Bond and Filing Assault Charges (Script 217)|217]] on “Applying for a Peace Bond and Filing Assault Charges”
For more on the adoption process, see our information on [[Adoption (Script 145)|adoption (no. 145)]]
*script [[Family Violence (Script 155)|155]] on “Family Violence”
*script [[Reporting Suspected Child Abuse (Script 156)|156]] on “Reporting Suspected Child Abuse”


==Can you use your spouse’s last name?==
==Common questions==
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 [[Changing Your Name (Script 161)|161]] on “Changing Your Name”.


==Can your children use your spouse’s last name?==  
===Can I use my 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 does not 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.  
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 on this process, see our information on [[Changing Your Name (Script 161)|changing your name (no. 161)]].


For more information on this, see the Vital Statistics Agency’s website at [http://www.vs.gov.bc.ca/ www.vs.gov.bc.ca], or call the main office in Victoria at 250.952.2681.
===My ex-spouse is abusive. What if I am concerned for my child’s safety?===
If you or your children are being threatened by a former spouse, you can apply for a '''protection order''' under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec183_smooth Family Law Act]''. This is a court order to protect one person from another.
A protection order can say your spouse must stay away from you and your children. It can restrain how your spouse communicates with you. If your spouse breaks this order, they can face criminal charges. For more on this process and other ways to stay safe, see our information on [[Family Violence (Script 155)|family violence (no. 155)]] and [[Peace Bonds and Assault Charges (Script 217)|peace bonds (no. 217)]].  


==Where can you get help or more information?==
==Get help==
*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.


*See the [http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice Family Justice website].
===With custody===
Family justice counsellors in '''Family Justice Centres''' throughout BC can help you with custody, child support, and related issues. Their services are free.
:Telephone: 604-660-2421 in the Lower Mainland and 250-387-6121 in Victoria
:Toll-free: 1-800-663-7867
:Web: [http://gov.bc.ca/familyjusticecentres gov.bc.ca/familyjusticecentres]


*Read the booklet “[http://www.legalaid.bc.ca/publications/pub.php?pub=347 Living Together or Living Apart: Common-law Relationships, Marriage, Separation, and Divorce]” by the Legal Services Society of BC and available free on their website at [http://www.legalaid.bc.ca/ www.legalaid.bc.ca]. To find it, click “Our publications” then under “I want to find a publication by subject” click “Family law”.
===More information===
'''Legal Services Society''', the legal aid provider in BC, publishes the booklet “[http://www.legalaid.bc.ca/publications/pub.php?pub=347 Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce]”.
:Web: [http://www.legalaid.bc.ca/ legalaid.bc.ca]


*See the Legal Services Society’s Family Law in BC website at [http://www.familylaw.lss.bc.ca/ www.familylaw.lss.bc.ca] — under “Your legal issue,” click “[http://www.familylaw.lss.bc.ca/legal_issues/commonLawBasics.php Common-law relationships]”.
The Legal Services Society’s '''Family Law in BC website''' has information on  common-law relationships.
:Web: [http://www.familylaw.lss.bc.ca/legal_issues/commonLawBasics.php familylaw.lss.bc.ca]
 
The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has information for unmarried spouses.
:Web: [https://wiki.clicklaw.bc.ca/index.php?title=Unmarried_Spouses wiki.clicklaw.bc.ca]


*Visit the wikibook ''[http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law JP Boyd on Family Law]'', hosted by Courthouse Libraries BC.




[updated May 2017]
[updated May 2017]


'''The above was last reviewed for legal accuracy by Zahra H. Jimale.'''
'''The above was last reviewed for legal accuracy by [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation.'''
 
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