Together Less Than Two Years With a Child in BC: What Rights Do You Have?

You moved in together, had a child, and the relationship ended before the two-year mark. You may be wondering whether the law treats you as a spouse at all, or whether you are left with nothing because you were never married.

In British Columbia the answer is more nuanced. The Family Law Act treats some short relationships differently depending on the issue. This article explains what a child together changes, what it does not, and the time limit you should know about.

This article covers the law of British Columbia.

When a short relationship still makes you a spouse

Under the Family Law Act, a person is a spouse if they are married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. That is the general rule.

There is an exception. Outside Part 5 (Property Division) and Part 6 (Pension Division), a person who has lived in a marriage-like relationship for less than 2 years is still a spouse if they have a child with the other person. The Act also says a spouse includes a former spouse, so you do not lose this status simply because you have separated.

The BC government says the Family Law Act may apply whether or not you were married, and that parenting, support and family-safety rules generally apply to both married and unmarried couples.

What a child together does and does not unlock

If you lived in a marriage-like relationship for less than 2 years but have a child together, you are still a spouse under the Family Law Act, except for Part 5 (Property Division) and Part 6 (Pension Division). That means a child together can make you a spouse for support and parenting matters, but not for property or pension division. The BC government confirms that spousal support can apply sooner than property division. Parenting and family-safety rules generally apply to both married and unmarried couples. Property division for unmarried couples needs at least 2 years of living together in a marriage-like relationship, and pension division is available only to spouses who meet that 2-year test. This article does not go through the parenting rules in detail, and how they apply to your family depends on your situation, so it is worth confirming with a lawyer.

How spousal support is decided

If a spouse is entitled to spousal support, the other spouse has a duty to provide it. Entitlement is decided after considering the objectives set out in the Act, and the amount is then determined separately.

The objectives are:

• to recognize economic advantages or disadvantages from the relationship;
• to apportion the financial consequences of child care;
• to relieve economic hardship from the breakdown of the relationship; and
• as far as practicable, to promote each spouse's economic self-sufficiency within a reasonable period.

The amount and duration depend on each spouse's conditions, means, needs and other circumstances. These include how long you lived together, the functions each of you performed while together, and any agreement or order about support. A short relationship is one factor, not an automatic bar.

Separation, time limits and agreements

You can be separated while still living in the same home. A court may treat as evidence of separation one spouse communicating an intention to separate permanently, or an action showing that intention. If you reconcile, the rules can treat you as not having separated in limited cases, such as resuming living together primarily to reconcile within one year and living together for periods totalling at least 90 days.

An application for spousal support must generally be made within 2 years. For unmarried spouses, the 2 years run from the date you separated, and the period is suspended while you are in family dispute resolution or a prescribed process.

Check also whether you signed anything. A spouse may agree in writing to release the other from spousal support. Where a witnessed written agreement exists, the court may not order spousal support unless the agreement is first set aside. It can be set aside for reasons such as non-disclosure of income, property or debts, or if it is significantly unfair.

What to do next

• Write down the date you began living together and the date you separated.
• Note whether you lived together continuously, and whether anything interrupted it.
• Gather income information for both of you, such as tax returns and pay records.
• Find any written agreements you signed, including any about support.
• Record the date by which a spousal support application may need to be made, and do not let it pass.
• Speak with a lawyer about your own facts, including parenting arrangements.

Frequently asked questions