Script 147 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses issues relating to the children of unmarried spouses. The topics discussed include:
- guardianship and the care of children
- adopting a child or your spouse’s child
- safety concerns
- using your spouse’s last name
Who is a “spouse”?
Under the provincial Family Law Act, “spouse” includes people who are married to each other as well as:
- people who have lived together in a marriage-like relationship for at least two years; and,
- except for the parts of the act about property and debt, people who have lived together in a marriage-like relationship for less than two years if they have had a child together.
Does an unmarried spouse have to pay child support?
The unmarried parents of a child both have a legal responsibility to support their child until the 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.
What about support for a stepchild?
A stepparent who is a spouse may have to help support a stepchild. A stepparent who qualifies as a “parent” as defined by the provincial Family Law Act has this obligation. The definition of a parent includes the unmarried spouse of a parent as long as the spouse has contributed to the support of the child for at least one year and the claim for child support is brought within one year of the stepparent’s last contribution to the support of the child.
To find out more about child support upon separation, refer to script 117 on “Child Support”.
How are the children cared for if you break up?
If you and your spouse cannot decide who the children should live with, 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 will also make decisions about how often the children will see each parent (parenting time or contact) and how parenting decisions about the children will be made (parental responsibilities). For more information, refer to script 140 on “Children Born outside Marriage” and script 142 on “Custody and Access, Guardianship, Parenting Arrangements and Contact”.
Can unmarried spouses adopt a child?
Unmarried spouses have the same rights as married spouses to adopt a child. Refer to script 145 on “Adoption” for more information on this topic.
What if you want to adopt your spouse’s child?
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 is agreeable, you can adopt your spouse’s child. Be aware, however, that by adopting you acquire all of the obligations of a natural parent in respect of the child, including the obligation to pay child support and contribute to the cost of the child’s expenses. Note that a child 12 or older must be willing to be adopted and has to give consent.
What if you want to place 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 argue against it. For more information, refer to script 145 on “Adoption”.
What rights do you have to be kept safe from an abusive ex-spouse?
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 217 on “Applying for a Peace Bond and Filing Assault Charges”
- script 155 on “Family Violence”
- script 156 on “Reporting Suspected Child Abuse”
Can you use your spouse’s last 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 information, refer to script 161 on “Changing Your Name”.
Can your children use your 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 doesn’t 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.
For more information on this, see the Vital Statistics Agency’s website at www.vs.gov.bc.ca, or call the main office in Victoria at 250.952.2681.
What last name do you or your children use if you separate?
If you separate from your spouse, you can continue to use his or her last name, or if you want, you can change your last name back or to something different. But if you’ve changed your children’s names legally, you’ll have to make another application to change their names again. This is a time-consuming process with lots of paperwork, so you should think seriously before making any legal change of name for your children.
Where can you get help or more information?
- 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.
- Also see the Family Justice website at www.ag.gov.bc.ca/family-justice.
- Read the booklet “Living Together or Living Apart: Common-law Relationships, Marriage, Separation, and Divorce” by the Legal Services Society. BC and available free on their website at www.legalaid.bc.ca. To find it, click “Our publications” then under “”I want to find a publication by subject,” click “Family law”.
- Also see the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca — under “Your legal issue,” click “Common-law relationships” (www.familylaw.lss.bc.ca/legal_issues/commonLaw.aspx).
[updated March 2013]
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