Though people living in a common law marriage are not considered married in Canada, many of their rights are the same when the relationship ends.
When it comes to spousal support, both married and common law couples are generally treated the same way. The bigger difference during separation when comparing a marriage and a common law union is in how the division of property is handled. This is where the legal advice of a divorce lawyer is best sought out.
Child-related issues are approached the same way, whether it’s a common law relationship or a marriage. The first question the judges always ask is: ‘What is in the best interests of the children?’ They first determine the primary residence of the children and then issue child support according to the Federal Child Support Guidelines. A grid outlines the expectations of the payer based on their income, regardless of the other person’s income. Whether married or unmarried, the biological parent is obligated to pay child support.
Children from prior unions
If someone comes into a relationship with a child from another relationships and their common law spouse takes on a parenting role, that person could be required to pay child support. This is called standing “in locus parentis”. When considering whether someone stands “in locus parentis” the court considers how long they’ve been living with the child, their involvement with discipline, attendance at important meetings like parent-teacher interviews, whether the person was called “dad” or “mom” and whether they helped to financially support the children.
Biological parents and child support
The situation becomes more complicated when a biological parent is part of the equation.
For example, if a stepfather has become like a father to the child, he may be required to pay child support.
The courts begin with the assumption that the biological father should pay the full amount in accordance with the Child Support Guidelines. They then review the stepfather’s income and what the Guidelines stipulate he should be paying. Often, there is a reduction in the stepfather’s obligation but this is dependent on the biological parent’s responsibilities. The first obligation is from the biological parent. If he is paying a trivial amount of support because his income is low and the stepfather has a substantial income, the stepfather may be ordered to pay most of the amount that the Guideline suggests. It can become complicated. Our lawyers can help you guide through a negotiated settlement using the Collaborative Process.
The same principles that apply to heterosexual couples apply to same sex couples whether married or common law and whether or not they have children or have acquired property.