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This chapter is for people who are or were in an unmarried relationship that was less than two years' long, and for people in longer relationships who didn't live together. The following chapter on common-law relationships contains information for people who lived together in unmarried relationships longer than two years. This chapter provides a brief overview the issues unmarried couples may face, including those they don't face, and looks at the issues of child support and the care of children. Introduction The Family Relations Act is intended to apply to couples that are or were in serious relationships, and to couples who weren't in a serious relationships but have a child. Almost all relief the act affords, except for relief relating to children, is not available to couples who:
As a result, a person in an unmarried relationship which is less than two years long will not be entitled to claim spousal support from the other party to the relationship and will be excluded from all the property-related relief offered by the act. The Divorce Act only applies to people who are or were married to each other. Relief Available to Unmarried Couples Children There is no minimum length-of-relationship requirement for any claim involving children. A parent is a parent no matter the nature of the relationship which produced the child, and is entitled to all of a parent's rights and obligations. A parent is entitled to all of the relief available under the Family Relations Act that concerns children, from child support to custody to restraining orders stopping someone from interfering with a child, whether the relationship was a one-nighter or something longer and a bit more committed. Issues about children are discussed at greater length further on in this chapter. Property Typically, people in a romantic relationships have three concerns about property when their relationship ends:
In a short relationship, a party will generally keep whatever they personally brought into the relationship. It is possible, in certain circumstances, for the party who doesn't own an asset to make a claim against that asset under trust law. There is no minimum length-of-relationship requirement for claims under the common law, although it is safe to say that the longer the relationship is, the greater your likelihood of success will be. 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 claim to the asset. While both parties may have contributed equally to the purchase of the asset, sometimes one party may contribute significantly more to the purchase than the other. In a case like that, the person that contributed more will be entitled to more than half of the value of the asset. Regardless of how the asset was acquired, normally one party will keep the item and buy the other out by paying to him or her an amount equal to what her or she put into buying the asset in the first place. If there isn't enough cash to make that a possibility, often the solution lies in selling the asset and splitting the sale proceeds. Depending on the nature of the property claim, relief may be available in Provincial (Small Claims) Court, and you may be able to avoid presenting your case to the Supreme Court. Small Claims Court can hear straightforward claims, such as for the return of property or the repayment of debt, but it cannot hear trust claims. If the value of the asset in dispute is more than $25,000, the use of the Supreme Court is recommended. Information about trust claims to assets can be found in the chapter "Family Assets > Dividing Assets." Government Benefits The most important thing to know on this topic is that most federal legislation describes a common-law spouse as someone who has been in a relationship for at least one year, as opposed to British Columbia's legislation which requires two years to qualify. As a result, someone in a relationship of at least one year may qualify for federal benefits as a result of their relationship, although they won't for provincial benefits. People in a relationship of less than one year will not usually qualify for any benefits at all. Relief Not Available to Unmarried Couples Spousal Support Section 1 of the Family Relations Act defines a "spouse" as someone who's lived in a marriage-like relationship with someone else for at least two years. As only "spouses" are eligible for spousal support, people in relationships for less than two years do not qualify to claim spousal support from the other party. Property The Family Relations Act expressly excludes anyone who isn't legally married from the part of the act that deals with the division of assets. As a result, all unmarried couples, including common-law couples, cannot rely on the act to divide family assets. The only kind of property claim an unmarried party can advance is through trust law when the asset at issue is not jointly owned. Back to the top of this chapter. Child Support Child support will be payable for anyone who is the biological parent of a child, no matter how brief or how long the relationship which produced the child was. 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:
Note that nothing in either 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. In certain circumstances, the only question remaining is whether or not the paying parent is actually the biological parent of the child. 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 section "Child Support." Additional information about paternity, the presumption of paternity and paternity testing can be found in the chapter "Other Family Issues > Paternity Issues." Back to the top of this chapter. Children Just as the simple fact of biological parent triggers a responsible for child support, it also triggers rights with respect to the parenting of the child. As with married parents and common-law parents, parents in short relationships also have rights with respect to:
All of these issues are canvassed at length in the section "Children." There are, however, two important points you should be aware of. 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. Since there's no reason why that couldn't be the child's father, the presumption about guardianship is a bit bizarre. Back to the top of this chapter. Site Navigation
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