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 at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses issues relating to children in common-law relationships, where a man and woman live together as if they were married, but aren’t legally married. The topics include:

• financial support for children in a common-law relationship
• child custody;
• adopting a child or your common-law partner’s child
• the safety of children in a common-law relationship
• using your partner’s last name

Does a common-law partner have to pay child support?
The unmarried biological parents of a child each have a legal responsibility to support that child until he or she is 19 years old (the age of majority in B.C.). They may also have to support their child beyond the age of 19 if their child is financially dependent on them because of disability or illness, or because their child is going to university or pursuing other post-secondary education. So if your partner is the mother or father of your child, your partner is responsible to help with your child’s financial support – during the relationship and if you break up.

What about support for a step-child?
A step-parent in a common-law relationship may also have to help support your child financially. A step-parent who is a “legal parent” (as defined by BC’s Family Relations Act) has this obligation. The definition of a legal parent includes a common-law partner of the biological parent:
 

• who has lived with that parent in a common-law relationship for at least two years, and
• who has regularly contributed to the support and maintenance of the child for at least one year.

So, if you and your common-law partner have lived together for at least two years, and your partner has regularly helped to support your child, your partner is responsible to help support your child – even if he or she isn’t the biological parent.

But with a step-parent, you must start your legal action within one year of the step-parent’s last contribution to the child, or your child’s right to support from that step-parent is permanently ended. So if your ex-partner wasn’t the biological parent of your child but was a legal parent, and you want him or her to pay child support, be sure to make your claim within one year from the time when your ex last supported your child.

These child support rules also apply to same-sex partners
These rules are the same for gay and lesbian couples who are living together in a marriage-like relationship and have children.

To find out more about child support upon separation, refer to script 117 on “Child Support.”

Who gets custody of the children if you break up?
If you and your common-law partner 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 child. The court will also decide on visiting rights for the other parent. For more information, refer to script 140 on “Children Born Outside Marriage” and script 142 on “Custody, Guardianship and Access.”

Can a common-law couple adopt a child?
A couple in a common-law relationship – as well as a same-sex couple – have the same rights as a legally married couple to adopt a child. Refer to script 145 on “Adoption” for more information on this topic.

What if you want to adopt your partner’s child?
The biological parent you’re replacing has to give up all of his or her rights as a parent of the child, so you can acquire the biological parent’s rights and obligations for that child. So if the parent you’re going to replace is willing, then you can adopt your partner’s child. Be aware, however, that by adopting, you’ll acquire all of the obligations of the parent you’re replacing, and that he or she will no longer have any obligations (financial or otherwise) for the child. 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?
Let’s say you are the biological mother, have separated from the father, and would like 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-partner?
If you or your children are being threatened by your former common-law partner, you can file a report with the police. You can get a court order saying that your partner must stay away from you and your children. If your former partner 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 partner’s 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. So you can take your partner’s name and call yourself Mrs. for any purpose such as at your children’s school, on your family allowance cheque, at work, at the bank, and so on. You can also apply to change your name legally if you wish. For more information, refer to script 161 on “Changing Your Name.”

Can your children use your partner’s last name?
You can also use whatever last name you want for your children, even if they are yours from a previous relationship, unless there’s a court order otherwise. If you’re an unmarried mother and have custody of your child or children, you can apply to legally change their last name to your partner’s last name (so long as your partner doesn’t mind). The Director of Vital Statistics can process a change of name for your child even if the biological parent doesn’t consent. But you have to convince the Director that the child’s name 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 name do you or your children use if you separate?
If you separate from your common-law partner, 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. Telephone 604.660.2421 in Greater Vancouver, 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 entitled “Living Together, Living Apart: Common-law Relationships, Marriage, Separation, and Divorce” published by the Legal Services Society of BC. You can access it free online at www.lss.bc.ca. Click on “Our publications” then search under the title heading for “Living Together, Living Apart: Common-law Relationships, Marriage, Separation, and Divorce”.

[updated November 2009]

Dial-A-Law© is a library of legal information that is available:

• by phone, as recorded scripts, and
• by audio and text, on the CBA BC Branch website.

To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia Branch.

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