A separation agreement is not required, whether you were in a common law relationship or married. However, we strongly encourage people to either sign a separation agreement or obtain a Final Order (by consent), which will outline the terms that you and your spouse agree to.

If you have children and you want to file for an uncontested divorce (aka desk order divorce), it is important to ensure that child support is being paid pursuant to the Federal Child Support Guidelines. A judge will generally not grant a desk order divorce if there are outstanding issues regarding child support or arrears. If you need a divorce before these issues are resolved, you will likely need to appear before a judge to explain the circumstances. Parents are not at liberty to “waive” child support because it is considered the right of the child.

Some people believe that getting a divorce means that everything is settled, but that isn’t always the case. You and your spouse will have up to two years from the date of divorce to seek orders regarding property and debt division or spousal support. After separation, either spouse can apply to equalize CPP credits without a court order or written agreement. (See What is CPP Splitting?)

Separation Agreements

Separation agreements are not as simple as many people think. We have seen many DIY separation agreements that were incomplete; inconsistent; contradictory; or included terms that the parties didn’t fully understand. When lawyers prepare separation agreements, we usually insist on an exchange of disclosure between the parties. Sometimes this disclosure is exchanged in a sworn Form F8 Financial Statement, which is a BC Supreme Court form.

We have also seen many cases in which one party signed an unfair separation agreement without receiving independent legal advice and no longer agrees to the terms in the agreement. The courts will generally set aside a separation agreement if it is significantly unfair to a person and that person did not receive Independent legal advice. For that reason, both people should obtain legal advice and attach a Certificate of Independent Legal Advice to the agreement. (See What is a Certificate of Independent Legal Advice?)

Signing a separation agreement before filing any court documents will also make your divorce cheaper. When you file a separation agreement with the court, you will pay a filing fee of up to $30 to file your Notice of Family Claim, whereas the filing fee for a Notice of Family Claim would otherwise be $200. (See What is a Notice of Family Claim?

Consent Order

Alternatively, you can obtain a Final Order by Consent rather than drafting a separation agreement. The benefit of a separation agreement is that a judge’s approval is not required. The benefit of a Consent Order is that neither party can later contest the terms on the grounds that they were unfair. If your spouse is willing to agree to terms that are very favourable to you and s/he is unwilling to provide confirmation that s/he has received independent legal advice, you should opt for a Consent Order. You or your lawyer will need to convince the judge that the order should be made. If the judge agrees to grant your Consent Order, it cannot be set aside in the future unless your spouse can prove a material non-disclosure. For example, if your spouse claims that you concealed an asset and wouldn’t have agreed to the Consent Order if s/he had known about it. Unlike a separation agreement, your spouse will not be able to have it set aside because it was significantly unfair and s/he didn’t receive legal advice.

Many people earn too much to qualify for Legal Aid, but not enough to spend tens of thousands of dollars on legal bills. The goal of The Law Portal is to assist the majority of people who need assistance accessing top-rate and affordable legal representation.

Lawyers across British Columbia work with The Law Portal to provide exceptional representation at discounted hourly rates. When you retain a lawyer in your area through The Law Portal, your local lawyer will offer a minimum discount of 15%. When you retain a lawyer that does not live in your area, your remote lawyer’s hourly rate will be discounted by at least 25%. Additional discounts may apply if you are referred through a referral program.

The Law Portal is able to offer these discounts because we don’t have high overhead costs for office space. We have access pay-per-use office space and boardrooms for meetings and mediation, when needed.

If you retain a remote lawyer and an in-person meeting or court appearance is later required, your lawyer may recommend one of the following options:

• your remote lawyer may travel for the appearance,
• one a local lawyer in your area might join your legal team to attend your in-person meetings and/or court appearances, or
• your remote lawyer might guide and coach you so that you can attend the appearance yourself.

Our clients are typically going through a painful divorce or separation, and almost all are stressed out and overwhelmed by the legal process. We promptly respond to our clients, and we’re often available during evenings and weekends, if necessary. We care about our clients and our clients consistently tell us that they appreciate how supportive we are.

Our clients also have the option of using their free and secure client portal, where they can send and receive messages with their legal teams, upload or download documents, view their calendars, pay their bills via credit card, and access additional resources provided to them by their legal teams.

In summary, The Law Portal might be a good fit for you if you want to:

• save thousands of dollars in legal fees;
• meet with your lawyer over Zoom, Facetime, or telephone from the comfort and convenience of your own home;
• have the ability to text message and/or Whatsapp your lawyer during and after business hours;
• retain a lawyer who is compassionate, supportive, skilled, experienced, and has excellent reviews from former clients; and
• have access to a free client portal that you can use to message your legal team, upload or download documents, view your calendar, pay your bills via credit card, and access additional resources provided to you by your legal team.

A Certificate of ILA (Independent Legal Advice) is a document that that your lawyer will sign and attach to your written agreement after your lawyer has fully explained the terms of the agreement to you and confirmed that you are signing the agreement voluntarily.

It is important for both parties to get a Certificate of ILA when signing an agreement because it confirms that they have each met with a lawyer and they both understand the terms they’re agreeing to.  Legal verbiage can be difficult to understand. It’s vital that you know exactly what you’re agreeing to before you sign an agreement, including the consequences, limitations, and potential repercussions of the agreement. An experienced family lawyer can help you understand the terms of your agreement and will explain how the agreement could potentially affect your rights in the future.

At The Law Portal, we’ve had several clients come to our office to get ILA on an agreement that they intended to sign but were shocked when we explained the potential consequences of the agreement. For this reason, we cannot stress enough how important it is to meet with an experienced lawyer before signing an agreement or contract.

You may not want your spouse to get legal advice about your agreement, but it could be detrimental to you if your spouse does not get a Certificate of Independent Legal Advice. An agreement can be varied or set aside in the future if one of the parties later decides that the agreement was significantly unfair and that party didn’t get ILA before signing. Parties can sign a “Waiver of Independent Legal Advice,” but that might not be enough if the agreement is deemed to be significantly unfair to that person – especially if that person claims that they were under duress (pressured) to sign the agreement. It is much more difficult to have an agreement set aside if both parties attach a Certificate of Independent Legal Advice to the agreement.

A divorce ends a valid marriage and an annulment is a declaration that your marriage was invalid. If a marriage is annulled, it essentially means that it never happened.

There is a common misconception that a marriage is voidable simply if it is not consummated, but the law is not that simple. In order to obtain annulment of a marriage on the grounds of failure to consummate, it is not sufficient for the parties to simply establish that they have not had sexual intercourse since the marriage. The party requesting an annulment must establish that one or both of the parties is incapable of engaging in sexual intercourse due to a physical or psychological incapacity.

Even if both parties agree that they would like to have an order annulling the marriage, the order will not be granted unless relevant grounds for annulment have been proven.

Annulments are uncommon because there are very limited and rare circumstances that would warrant an annulment. For example: if one of the spouses was still married to someone else when the marriage occurred; if someone was forced to marry under duress; or if someone accidentally married the wrong person.

An annulled marriage doesn’t terminate the parties’ rights and obligations if they have lived together for two or more years or have a child together. In that case, the parties can still seek orders pursuant to the Family Law Act as common law spouses.

Date of Cohabitation

The date of cohabitation is the date that two people began living together in a marriage-like relationship. See What is a “marriage-like relationship?

Date of Separation 

The date of separation is the date that those people stopped living together in a marriage-like relationship.

Whether you’re married or in a common law relationship, it is important to consult with a family lawyer to confirm your specific date of cohabitation and date of separation because these dates are determined on a case-by-case basis.

It is possible for parties to remain in a relationship despite living apart, and it is also possible to be separated while remaining in the same residence. It isn’t uncommon for people to separate but remain in the same household in a non-marriage-like relationship, whether for financial reasons or for the parties’ children.

The date of separation is usually the date that one of the parties expressed an intention to end the relationship and took steps to confirm that intent (such as sleeping in a separate bedroom or filing his or her income tax returns as “Separated”). The date of separation may change if you and your spouse temporarily reconcile.

These dates can have important implications, including (but not limited to):

• whether a common-law spouse is statute-barred from making a claim for spousal support or the division of property and debts because more than two years has passed since the date of separation;
• whether a spouse is entitled to spousal support;
• the amount and duration of spousal support that a spouse is entitled to;
• what debts qualify as “family debts” that both parties are presumptively equally responsible for; and
• which assets qualify as “family assets” that both parties are presumptively equally entitled to.

Here is a hypothetical example of a couple’s date of cohabitation and date of separation:

Two people start living together on August 1, 2012 and have a child shortly thereafter. They never get married and they begin to grow apart over time. They try couples’ counselling, but finally agree that their relationship is over on January 1, 2018. The father moves into the basement, and the parties do not reconcile at any point after January 1, 2018.

Despite the fact that the parties remained at the same address, the date of separation is January 1, 2018, and these spouses would have until January 1, 2020 to file a Notice of Family Claim seeking spousal support or the division of family property and debt. (There are no deadlines to seek orders regarding children, such as parenting arrangements or child support.)

If one of the parties moves out of the family residence on January 30, 2020, he or she might think that the date of separation is January 30, 2020, and there is plenty of time to seek spousal support and the division of family assets and debts. However, they could be statute-barred from making these claims because more than two years has passed since the “date of separation.”

Like most legal issues, there are exceptions to every rule and there are equitable remedies for unjust enrichment or constructive trusts. Determining the date of separation can be very subjective because it requires more than just a declaration from either of the parties that the relationship is over. If either of the parties continues to financially rely on the other or they otherwise continue to act as though they’re in a “marriage-like relationship” after separating, their situation could become very complicated. This is why it is important to consult with an experienced family lawyer if you or your spouse are even considering separating.

See Am I in a common law relationship?, Are there deadlines to seek orders in family law?, and What is a “marriage-like relationship?

The Family Law Act does not define “marriage-like relationships,” so the definition is determined on a case-by-case basis, and it evolves over time as new cases are decided in the courts. For example, the courts in British Columbia used to consider “financial dependence” to be an essential aspect of a “marriage-like relationship.” Financial dependence is still a relevant factor, but the courts have recognized that many spouses in modern common-law relationships keep their finances, assets, and debts separate.

There isn’t a specific “check-list” that the courts will use to determine whether two people were in a “marriage-like relationship,” when it began, or when it ended. If two people have a dispute about any of these issues, there are several factors the courts will consider, none of which are determinative alone. Some of these considerations include:

• the subjective intentions of the parties;
• whether both parties had only one shared residence, or if either party maintained a separate address while they shared a residence;
• whether the parties co-mingled their finances or shared their household expenses;
• whether the parties filed their income tax returns as single, common law, married, or separated;
• whether either of the parties included the other on an extended health benefits policy;
• whether either party accepted the role of a step-parent to the other’s children from a previous relationship;
• whether the parties expressed their love and commitment to each other. For example, text messages or emails in which they expressed their love, discussed marriage, offered emotional support; or made shared plans for the future. For example, discussing plans to move to a new city together or conceive a child;
• significant or intimate gifts provided to each other, such as an engagement ring or a pet;
• whether the parties introduced each other or referred to each other as their “girlfriend,” “boyfriend,” “partner,” “wife,” “husband,” or “spouse”;
• whether the people acted as a couple and did things that couples typically do, like travelling together or going out on dates together;
• whether the parties considered each other when planning their wills and estates;
• whether third parties considered them to be “a couple”; and
• whether the parties shared a bed and/or were sexually intimate with each other.

If several of the above factors apply, the courts may consider the relationship to be “marriage-like,” regardless of the parties’ genders. Canadian courts officially recognized that people of the same gender may be “spouses” living in “marriage-like relationships” in 2005.

See Am I in a common law relationship? and What is my “Date of Cohabitation” and what is my “Date of Separation”?

What is a “spouse”?

There are two types of spouses: (1) married and (2) common law.

What is a “common law” relationship?

There are two types of common-law relationships:

1. You and your spouse have lived together “in a marriage-like relationship” for at least two consecutive years, whether or not you have a child (or children) together, or

2. You and your spouse have lived together “in a marriage-like relationship” for any period of time that is less than two consecutive years, but you have a child together.
If your relationship falls into either of the above categories, you are in a common law relationship and your partner is considered your “spouse.”

The second type is confusing because a lot of people think that having a child with someone automatically makes the other person their common law spouse, but there is a requirement of at least a brief period of cohabitation in a marriage-like relationship.

Two people are not spouses, and they are not in a common law relationship if they are:

(1) not married, AND
(2) have never cohabited “in a marriage-like relationship” together,

Even if:

(1) they have a child together, and/or
(2) they lived together in a non-marriage-like relationship (for example, as platonic roommates)

If this is confusing, here are some hypothetical examples to help you understand:

Example 1: A child results from a one-night stand and the parents never live together.

They will both be parents, but not spouses. Whichever parent lives with the child will automatically be the child’s guardian, but the other parent may not be the child’s guardian unless he or she cares for the child regularly. It’s important to note that parents do not need to be spouses in order to seek orders regarding the children, such as orders regarding guardianship, child support, parenting time, or contact time.

Example 2: Two people live together in a “marriage-like relationship” for 1.5 years and do not have a child together:

The parties are not spouses. Neither party is entitled to spousal support or the division of the other’s property and debts. They should both try to divide their individual or jointly acquired assets and debts, but the family courts will generally not assist them in doing so. Either party can start civil proceedings, such as an action in Small Claims Court, if there is a dispute over property or debts.

Example 3: Two people live together in a “marriage-like relationship” for 6 months and have a child together:

The parties are spouses in a common law relationship. Either party can seek orders under Parts 2 – 4 or 7 – 10 of the Family Law Act (including but not limited to spousal support), but neither party can seek orders for the division of family property or family debts in family court.

Example 4: Two people live together in a “marriage-like relationship” for at least two years:

Whether or not they have a child together, the parties have the same rights as married couples, and either party can seek any order under the Family Law Act, such as orders for spousal support or the division of property and debts.

Example 5: Four students live together as roommates for three years. Two of those roommates have a little too much to drink on the one night and they conceive a child.

These people are not spouses, despite the fact that they will be parents and have lived in the same residence for more than two years. Unless they start to live together in a marriage-like relationship, neither party can seek orders under the Family Law Act, such as orders for spousal support or the division of property and debts. As mentioned above, either parent can seek orders from the court regarding the child (or children).

Example 6: Those two roommates in Example 5 decide to start a romantic relationship after finding out about the pregnancy. They get their own place and start living together in a “marriage-like relationship.”

The date they get start living together in a “marriage-like relationship” (most likely, the date they get their own place) is referred to as the “date of cohabitation.” The Date of Cohabitation is the date that two people start living together in a marriage-like relationship. Following the date of cohabitation, these two people will become spouses living in a common-law relationship.

The commencement of cohabitation and the existence of a child means that either of these parties can seek spousal support from the other if they separate, even if they separate before living together for two years.

If they live together for at least two years after the “date of cohabitation,” the parties will have the same rights as married spouses and can seek orders for spousal support and the division of property and debt, including the division of pensions, if applicable.

You should never hesitate to contact the police if you fear for your or your children’s safety, but the police generally won’t enforce a court order unless the order contains a police enforcement clause. For example:

Any peace officer, including any RCMP officer having jurisdiction in the Province of British Columbia, who on reasonable and probable grounds believes that (OTHER PARENT’s NAME) has (example: removed the children from the Lower Mainland of British Columbia without (YOUR NAME)’s prior written consent) may take action to enforce (SPECIFY THE ORDER OR TERM OF THE ORDER), including but not limited to:

a. apprehending the Children, including removing them from the care of (OTHER PARENT’s NAME) and delivering them to (YOUR NAME);
b. entering and searching any place where he or she has reasonable and probable grounds for believing the Children may be; and
c. immediately arresting (OTHER PARENT’s NAME) and bringing him/her before a judge of the (Provincial or Supreme) Court promptly after the arrest, to be dealt with on an inquiry to determine whether he/she has committed a breach of this order.

If you do not have a police enforcement clause, the police will generally not enforce your parenting schedule or apprehend a child unless the police have reasonable grounds to believe that the child has been abducted or is in imminent danger.