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This chapter provides a brief overview of what a common-law relationship is, and looks at how the issues of spousal support, children and child support and assets and debts are usually dealt with. This chapter also discusses common-law partners' entitlement to government benefits such as MSP coverage, EI payments and CPP pensions. This chapter covers only the legal aspects of the end of a common-law relationship. Some of the emotional aspects of the end of a long-term relationship, and how these emotional issues can impact on the resolution of the legal issues, are reviewed in the chapter "Marriage & Divorce > Separating Emotionally". Introduction The provincial Family Relations Act defines "spouse" as including unmarried people who have cohabited for at least two years in a "marriage-like" relationship. People who meet this definition are "common-law" for the purposes of the Family Relations Act. This will be discussed in detail a little further on. The most important thing to understand about "being common-law" is that it means nothing more that having a particular status for the purposes of a specific piece of legislation, and that's it. Being in a common-law relationship means nothing else except whether your relationship is of such a nature that you qualify for a particular benefit or a particular obligation under the terms of a particular statute. As a result, the question that should be at the front of your mind is: "Do I qualify as a common-law partner for the purpose of _________ legislation?" As a result, while married couples are always married "spouses," common-law couples aren't always common-law spouses. The definition of "spouse" for common-law couples depends on the particular act you are looking at. For example, the federal Income Tax Act defines "spouse" as including people who have cohabited for one year, while the regulations to the provincial BC Benefits (Income Assistance) Act define "spouse" as including anyone cohabiting in a "marriage-like" relationship with no particular time limit. These are the general rules:
Regardless of your federal status or provincial status under these rules, it is not true that being a common-law couple means that you are legally married. Being married involves a formal ceremony and certain other legal requirements. As far as matters of family law are concerned, since the federal Divorce Act only applies to couples who are legally married, the Family Relations Act and certain aspects of the common law are the only game in town. Qualifying under the Family Relations Act: Cohabitation for Two Years This criterion for common-law relationships is fairly self-explanatory. The only thing that needs to be pointed out is that the two year period doesn't need to be continuous. On the other hand, if a claim is based on the parties being common-law spouses, the court will probably examine the nature of the relationship in more detail. A gap of a three of years in the middle of the the two years a couple are supposed to have lived together probably won't cut it. Qualifying under the Family Relations Act: a "Marriage-Like" Relationship This is more complex than the calculation of the duration of a relationship, partly because it calls for the court to make a decision about the nature of the parties' private, personal relationship with one another. In a 1998 case called Takacs v. Gallo, the Court of Appeal for British Columbia endorsed these considerations:
In a nutshell, where common-law status is disputed, the court will enquire as to how the couple represented themselves to their family and friends, and as to the nature of their financial relationship and household relationship. Did the couple present themselves as a family unit and conduct their personal affairs as a family unit? Limitation Periods for Support While a claim for child support with respect to a child of the parties will remain open until the child reaches the age of 19, there are two important things you need to know about claims for spousal support and child support as against step-parents:
In terms of when a relationship is considered to have ended, a recent case of the British Columbia Supreme Court took the view that the "marriage-like" quality a common-law relationship must have is fundamental to the nature of the relationship, and thus to the date from which the limitation period will begin to run. In this case, the court held that the "marriage-like" quality of the relationship had ended before the couple physically separated. As the applicant brought her claim for support outside of the one year period after the "marriage-like" quality ended, she was not eligible for spousal support. Back to the top of this chapter. Spousal Support Providing a couple meet the criteria necessary to establish a common-law relationship, either party is entitled to seek an order for spousal support under the Family Relations Act. The same principles apply to a spouse from a common-law relationship seeking spousal support as they do for a married spouse: in essence, the party claiming support must be able to show that he or she is 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. For married couples, each party's obligation to support the other spouse starts on their marriage. For common-law couples, however this obligation starts only when the parties separate. See the section "Spousal Support" for more detailed information on this topic. Back to the top of this chapter. Children and Child Support There is no length-of-relationship requirement for any application involving children, although there is a difference between being a natural parent and being a parent in the eyes of the law. 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 step-parents and a partner in a common-law relationship, if that person has contributed to the support of the child. 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. Legal Parents Where a parent lives with another person in a marriage-like relationship for two years or more, the other person has contributed to the support of the child, and an application involving the child is brought within one year of the of end the relationship, other other person will be a legal parent for the purposes of the Family Relations Act. From the point of view of the natural parent, this means that the legal parent will 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, and that you can bring a claim against the natural parent for things like custody, guardianship and access to the child. See the section "Children" for more information. Adoption Common-law couples can apply to adopt a child together. A common-law partner can also apply to adopt the child of the other partner, although the consent of the other biological parent of the child will usually be required. See the chapter "Other Family Issues > Adoption" for more information. Child Support Child support will be payable by anyone who is the biological parent of a child, regardless of whether the relationship which produced the child qualifies as common-law or not. 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:
For common-law couples, the guidelines for child support are set by provincial laws, however the Guidelines that apply are the same as for married couples under the federal Child Support Guidelines, and all of the same rules will apply. See the section "Child Support" for more information. Back to the top of this chapter. Assets and Debts Anyone who is not formally married, including common-law couples, are expressly excluded from the portions 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 and establish a claim for a resulting trust or a constructive trust if he or she wishes to obtain an order for the division of assets owned by the other spouse. Constructive Trusts in a Nutshell The principle common law trust remedy for "unjust enrichment" which allows for one common-law partner to share in assets owned by the other is the doctrine of the "constructive trust." Unjust enrichment is proven by showing that:
Think of it like this. A couple have a very traditional, domestic relationship: Partner A goes off and works at a cardboard box factory bringing home the bacon, while Partner B stays home, maintains the household and cooks and cleans. Partner A gets the benefit of Partner B's domestic services, which saves Partner A from having to hire a cook and a housekeeper. At the same time, however, Partner B could have sold exactly those services to someone and been paid for working as a launderer, cook or housekeeper. Parter A benefitted from exactly the thing that Partner B was deprived of. While constructive trusts can establish an interest in an asset, they can be difficult to prove and can be disappointingly small. For example, the court might look at Parter A and Partner B and say to Partner B: "Ah, but you didn't pay any rent during your relationship, did you? You got free room and board in exchange for your chores, and we'll chop the value of that from your interest in Partner A's condo." You should not get the impression that all claims in constructive trust are doomed to fail, but you must be aware 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. There is no set length of relationship which must be met in order to make a successful claim under this doctrine, although, in general, the longer the relationship is, the more likely your claim will be to succeed. Trust claims are discussed in more detail in the chapter "Family Assets > Dividing Assets." 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. 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. 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. 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. 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 deal with claims about property and dent, however if the value of the asset in dispute is more than $25,000, the use of the Supreme Court is recommended. "Opting-In" to the Family Relations Act Common-law couples who have executed a cohabitation agreement or a separation agreement, may be entitled to the full benefit of the portions of the Family Relations Act dealing with the division of property under s. 120.1. That section reads as follows: (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. In other words, if a common-law couple ("spouses") make a cohabitation or separation agreement, they may make an application under the parts of the Family Relations Act (Parts 5 and 6) that deal with the division of family assets. There is a huge down side, however. Even if you have access to those parts of the act, you must still prove that the manner in which the family assets were divided in the agreement was unfair, and it can be very difficult to upset the portions of family agreements that deal with the division of assets as. See the chapter "Family Agreements > Making Changes" for more information. 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 items. Debts incurred jointly will also be shared between the parties. Note that debts are not dealt with in the Family Relations Act, and are normally dealt with in the common-sense manner just described. One last point deserves mention. If a couple has a joint debt, such as a bank loan that was cosigned, a joint credit card or a secondary credit card, both parties will continue to be responsible for the debt. 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; even worse, the personal property of both parties and each party's income is at risk of seizure or garnishment! Back to the top of this chapter. 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. It can also expose them to the prospect of losing those benefits, depending on the rules about each kind of benefit. Welfare (BC Benefits) The ministry which administers BC Benefits 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 treat you as single. Employment Insurance (EI) EI applies the same standard to common-law couples as it does to married couples. Canada Pension Plan (CPP) Common-law couples may share in each others' pension benefits, however this sharing is not automatic. You must apply to share, or "assign," your CPP credits. Note that there may be positive income tax consequences if you elect to share your pension. 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. 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. Medical and Dental Benefits BC MSP 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 are entitled to any workplace medical or dental insurance benefits, check with the plan adminstrator to see if common-law partners are covered under the plan. 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. Back to the top of this chapter. Site Navigation
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