Being in a common-law relationship means that you share the same rights and responsibilities as though you were married. The question of whether or not you and your partner are in a common-law relationship is an issue that our courts have often faced. The purpose of this article is to help you understand whether or not you and your partner were in a common-law relationship after your separation, and provide you with information to help you understand whether or not the Court would interpret you and your partner to be in a common-law relationship.
The 2-year anniversary of when you and your partner commenced living together, as partners, marks the day that you are common-law. The question of whether or not you and your partner are, in actuality, in a common-law relationship or are roommates, or when your relationship commenced are also issues the Court’s have faced. The Saskatchewan Court of Appeal laid out factors to consider to determine whether or not individuals are in a relationship in Romanchuk v Robin, 2003 SKCA 50 and noted the following factors at paragraph 9:
(1) Shelter:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) Sexual and Personal Behaviour:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity?
(c) What were their feelings towards each other?
(d) Did they communicate on a personal level?
(e) Did they eat meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) Services: What was the conduct and habit of the parties in relation to:
(a) Preparation of meals;
(b) Washing and mending clothes;
(c) Shopping;
(d) Household maintenance;
(e) Any other domestic services?
(4) Social
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?
(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (economic):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children: What was the attitude and conduct of the parties concerning children?
The above factors aid in determining whether or not you and your partner are in a common-law relationship and are also considered in determining when your relationship commenced.
Do you have to have children to become common-law with your partner?
You and your partner can have children together and not be in a common-law relationship, conversely, you can be in a common-law relationship with your partner without children. Having children has no bearing on whether or not you are in a common-law relationship, although it can help you argue that you were in a common-law relationship. Please review our article on when do you become common-law with your partner (link this) to understand the factors that determine whether or not you are in a common-law relationship.
You should know that if you have a child with your partner, you and your partner are both equally responsible for the child. This means that, even if it was not planned and you are not in a relationship with the other parent of the child, you have a responsibility to pay child support for the child. Being in a common-law relationship is not a requirement to pay child support.
When do you start paying child support?
The child has a right to support from both of their parents as soon as they are born. This means that the parent who is not primarily caring for the child should pay child support to the primary parent as soon as the child is born. If both parents are equally parenting the child, then the parent who earns more money generally pays child support to the other parent, or if both parents’ incomes are similar, neither parent pays child support for the child.
Additionally, the Family Maintenance Act, 1997 entitles the Court to order child support commencing 3 months prior to the child’s birth, and also entitles the mother of the child to receive compensation for prenatal care and the birth of the child. The amount of child support you ought to pay can be calculated by our child support calculator (link here).
You have to pay child support for your biological children, and where you “stand in the place of a parent” for a child. There are several factors to consider to determine whether or not you stood in place of a parent for a child, however, the general rule is that if you acted as a parent for a child, you have a right to pay child support for the child. This is more intricate than simply being a babysitter, it usually applies to step-parents who have a settled intention to treat the children as their own.
Child support is not permanent, it does eventually end, and this is detailed in our article Can you stop paying child support.
Can you Stop Paying Child Support?
You must keep paying child support until you no longer have an obligation to support the child. Your obligation ends, sometimes, when the child is 18 years old. If the child is 18 years old but continues their education and is unable to support themselves, then they can be deemed as a “child” for the purposes of child support and you will need to continue paying child support. Typically, if the child attends university and continues to be under the care of the primary parent, and the primary parent continues to financially support the child, your responsibility to provide child support will continue.
Alternatively, if the child moves out of the home, starts working, and is able to support themselves, then your obligation to provide child support usually ends.
Your obligation to provide child support also ends if the child has been adopted. The Adoption Act, 1998, states that if a child has been adopted, the previous parents lose all rights and obligations they have to the child. If your new partner adopts the child pursuant to a “step-parent adoption” then you continue to be responsible for the child, but the other biological parent loses all rights to the child.
If your ex-partner has a new partner who is caring for the child, this does not displace your right to provide child support for the child unless the new partner legally adopts the child.
If you and your partner do not agree on when child support should end, an application to the Court should be made, to have this determined by the Judge.
