Understanding common law couples in British Columbia

What is common law in British Columbia?

In British Columbia, a common law relationship is a romantic relationship between two people who are not married but who have been living together in a marriage-like relationship for a period of time. There are not any set requirements to qualify as a common law relationship in BC; rather, the determination of whether a common law relationship does in fact exist depends on the totality of the circumstances. For example, a finding that a common law relationship exists may turn on whether or not the parties have referred to one another as spouses, married couples or life partners, if the parties have seen themselves as being committed to one another, or if they have acted as a couple or family unit in front of other people regardless of whether or not they have publicly disclosed their relationship status.
To be considered a common law couple for legal purposes, in general , the parties must have lived together in a marriage-like relationship for two years prior to separation (or before the day on which they begin to live apart with no intention of resuming cohabitation). However, this time requirement can be reduced or removed altogether if the parties have children together; for example, parties who have children in common may qualify as a common law couple immediately upon moving in together.
Because so many people choose to cohabit in relationships that fall outside of the traditional definition of a marriage, the law in British Columbia must now allow for the recognition of relationships of economic interdependence varied from the historical view of a husband and wife relationship. In doing so, the law in British Columbia now grants the same entitlements to de facto spouses as they would be entitled had they been legally married.

Legal rights of common law couples

Common law spouses in British Columbia have the same legal rights as married spouses in terms of spousal support, division of property, division of pensions and debts accumulated during the relationship, and responsibility towards debts made during the relationship. The Family Law Act governs the division of property between common law partners and between married spouses. Common law spouses cannot claim entitlement to property based on a theoretical "joint family venture," as was done in the past. If you have no agreement, property will be divided according to s. 84 of the Family Law Act. Under s. 84, the partner whose family property is in the form of real property (real estate) gets a "preferential share" of the value of real property and the other partner gets the remaining family property. The "preferential share" is the greater of:
(a) the equity in family property that was ordinarily used as a family residence, and
(b) one-half of the equity in all other family property.
A spouse may also claim a lump sum amount for contribution to the other partner’s property. However, the amounts are capped at $50,000.00 and may be difficult to prove. In British Columbia, if the requisite length of cohabitation is met (2 years plus 5 years where a child is born who lives for at least 1 year), the right to party to party support does exist after separation. That means that common law partners and married partners have identical entitlements to spousal or child support. The Family Maintenance Enforcement Program Act ("FMEPA") may be used to ensure collection of child support payments. The FMEPA is the only option for enforcement of child support awards, which can include garnishment of salaries and bank accounts.

Common law couples vs married couples

In British Columbia, there are some significant differences between the legal entitlements of married spouses and those of unmarried spouses who live in "common law" relationships (which the Family Law Act defines as two persons who have lived together for a continuous period of at least two years).
Unlike married spouses, unmarried spouses do not have the right to claim spousal support unless they can establish the existence of an economic advantage or disadvantage arising because of the relationship, and even then, only if the Court is satisfied that the order would be just and equitable. Further, financial misconduct, which is so often relevant in family law cases, is a concept that does not apply to common law spouses, whereas the Family Law Act clearly states that the Court can consider the existence of a spouse’s misconduct in dividing family property or awarding spousal support to that spouse.
Moreover, unmarried spouses are not entitled to a division of property acquired during their relationship. The Family Law Act allows the Courts to divide property acquired during the relationship only if the spouses have a child who is under the age of majority and the court is satisfied that the order would fair and reasonable. In other words, without a child, in most circumstances, if title is registered in the other partner’s name, the other partner will not have to divide even the jointly contributed equity in the property on separation or divorce. There are only certain property rights available to children of unmarried spouses in order to remedy the above. Cognizant that the children of unmarried spouses suffer a disadvantage upon the breakdown of their relationship due to the lack of property rights available to their parents, the Family Law Act provides for the registration of a "claim of interest" in property owned by another spouse under the Family Law Act. While there is no guarantee that the claim of interest would actually give rise to a constructive trust or other equitable remedies giving the claimants an interest in the property, it is one remedy available to children of common law spouses.
The Family Law Act further provides that the Courts can "impute" earnings of a party to the other spouse in certain circumstances in order to address economic advantages or disadvantages suffered by the other spouse during the relationship. While imputation of earnings is possible under the Divorce Act and may be considered by the Court in determining child or spousal support, the Family Law Act provides more rules and guidance for determining the appropriateness of such an order.

Separation and division ofproperty

If you are in a common-law relationship and have separated you are in the process of determining the status of your property rights and obligations. If you own property alone, jointly or the family home, certain considerations may apply to your situation. It is important to know that common law spouses in BC are not entitled to "equal" property division as married spouses are entitled to. The legislation that sets out how a spouse’s property is dealt with upon separation is the Family Law Act (FLA). Common law spouses are not included within the family law act definition of a spouse. Under the FLA, regarding married spouses, property that is owned and acquired during the relationship is divided equally. For common law spouses, the following analysis applies: 1. Is property owned and acquired during the relationship? If it is, then it is divided equally. If it isn’t, then 2. Is there a special known intention associated with the property indicating that it is to be owned separately? If there is, then it is divided accordingly. If there isn’t, then 3. Is there any _unjust enrichment_? If there is, then the person who was enriched can be ordered to repay the other person.
Your lawyer will work with you to assess whether your case is suitable for an unjust enrichment argument (also known as a claim under "resulting trust" or "constructive trust"). Statute law regarding the FLA does not govern this area of family law and therefore it is found under common law principles. An example of unjust enrichment as it applies to property and division, is highlighted in the leading BC case on the issue: Nova Scotia PP v Walsh (1999). In this case a father paid off the mortgage of his son’s future wife’s residence so that she could afford to marry his son. By the time the father died, the marriage had failed and the home was sold for a profit. The court found that it would be "unjust" for the son’s wife to walk away from the increase in equity (i.e. the profits) without compensating the father’s estate.
Ownership of property usually falls into two categories: ‘title’, who’s name is on the property, or who has paid for the property or a portion of a property, or contributed to it in some way. Practically speaking, regardless of the legal title, the person who has paid the mortgage and taxes, taken care of the maintenance/upkeep decisions, may be viewed as having the greater proprietary interest in a property. Although this is not concrete, it is important to remember when discussing property division.

Impact on child custody and child support

In British Columbia, the Child Family and Community Service Act, RSBC 1996, c. 46 provides the legal definition of a spouse as it pertains to custody and support proceedings. Because the definition is broad, it encompasses both married and unmarried couples. When it comes to child custody, parents may agree to let one parent have more parenting time with the children than the other. This shared parenting time may be outlined in a parenting plan or a court order, though family law experts recommend outlining those agreements in writing. In the event that the agreement includes a schedule for how the children will spend their time with each parent , it is best practice to have that schedule formalized in writing because some judges are hesitant to enforce an informal parenting agreement between parents that does not have a schedule or specified time allotment for each parent.
As for child support, the Divorce Act as well as the Family Law Act of British Columbia both apply to issues of child support when the parents have separated from one another. The BC Child Support Guidelines provide that the amount of child support a parent is obligated to pay after separation is based on his or her annual income. The Guidelines also include a number of other factors that affect the final amount of the child support obligation.

How to ensure your common law rights

The laws in British Columbia with respect to common law relationships are unique to the province and, like all family law issues, can be very complicated if you do not have a basic understanding of them.
A lot of misinformation exists out there when it comes to common law relationships. A lot of people think that simply having lived together for a certain period of time gives rise to an automatic presumption that a couple is in a common law relationship or gives rise to automatic entitlements upon separation. For example, people think that after living together for 4-6 months a couple is automatically considered common law in the eyes of the law and is entitled to property division. This is not the case.
In order for a common law relationship to exist there must be a marriage like relationship; generally a cohabitating couple residing together in a sexual, conjugal relationship. The courts look to numerous factors when determining whether one exists, such as:

how long did the couple reside together?
are the couple’s families aware of the relationship?
do the couple’s friends and family believe them to be a couple?
did they live together during the relationship?
do they share chores?
do they prepare meals for each other?
do they share a bed?
how did they support themselves and their children?
do they own property together?
do they have joint credit cards or bank accounts?
do they have life insurance naming each other as a beneficiary?
do they file taxation returns together?
do they have a joint will?
do they hold themselves out to be married when relating to third parties (for example, introducing each other as "husband/wife")?

If a common law relationship has been found to exist, entitlements upon separation are rarely automatic. If it is a property issue, the parties must have been living together as a couple for at least two years in order to have entitlements under the Family Relation Act. If kids are involved: There are no spousal maintenance provisions at all; however, child support obligations do exist. Spousal support entitlements do exist but are not automatic. Conduct such as infidelity and unequal economic disadvantage may be considered by the court as well as duration of relationship, child-rearing responsibilities, compensation on economic disadvantages in the relationship and whether circumstance intended it to be a long-term relationship or not. How does one protect oneself against entitlement arising out of a common law relationship? Very simply, by having a cohabitation agreement drafted. Even if there is no need to enter into a cohabitation agreement if you don’t want to (for example, if you are only living together for half a year), it is always better to have a cohabitation agreement in place than not.

Useful resources for common law couples

Many resources are available to common law couples in British Columbia. The legal aid program and the British Columbia Parenting After Separation program offer useful services for parents going through a separation. The Ministry of Justice offers a family justice service centre. Family justice services centres offer information relevant to child and spousal support, parenting arrangements , and division of family property to help you resolve issues outside of court. They also provide lawyers for low-income people through the family duty counsel service which gives on-the-spot advice about family law issues and court proceedings. Seniors First BC handles calls regarding all landlord/tenant issues for seniors by a housing mediator. You can find more information about resolving disputes without going to court and accessing other programs and services. Consider resolving your conflicts with alternative dispute resolution or by mediation. The British Columbia Family Law in British Columbia website contains terminology, court forms, and procedure information for British Columbia. You may find more information on this subject in entitlements and responsibilities when living together under the Family Law Act.