Legal Question in Family Law in Canada

Re: Cohabitation

As noted on the LawGuru website questions are answered with reference to British Columbia law and while the law may be similar in other provinces, it may not.

In B.C. and most likely in the rest of Canada there is no such thing as "Common Law Marriage"; this term is widely misused but really means an actual legal marriage entered into not through the performance of a religious or governmental sanctioned process but rather through the practice common in the community where the marriage was entered into; in those jurisdictions that actually have "Common Law Marriages" in order to become free to marry again, it is necessary to obtain a divorce.

The question really is about co-habiting without the benefit of marriage, whether governmental, religious or common law. In British Columbia after cohabiting for two years each party acquires an interest in the property of the other similar to the interest acquired on marriage. It is possible to enter into a "cohabitation agreement", which is a form of contract that provides the rights and responsibilities of each party during the period of cohabitation and how the affairs of the parties will be dealt with on ending the cohabitation. In general the longer the cohabitation the less likley that the cohabitation agreement will be upheld by courts on ending the relationship. This is because generally the affairs of the parties and their situations change over the years, so that after a number of years the relationship, the duties, rights and responsibilities and the assets as well as the jobs and earnings of each party may be very different from what they were at the beginning of the relationship and because of the changed situation it may very well not be seen by the courts as fair to uphold an agreement that may be many years old.

Parties are generally responsible for the support of the children of the other after one year of cohabitation, assuming that the child's parent's partner contributed to the maintenance of the child during cohabitation (buying household food, paying the rent or mortgage in whole or part, etc) and acted in some respects as a parental figure. On breakup of the relationship the partner of the child's parent may be required to pay child support, and in British Columbia you can not make a contract or agreement not to pay, even if the parent wants to; this is because the right to support is the child's, not the parent's.

In order to enter into a cohabitation agreement it is necessary to find a lawyer to draft the agreement; the cost varies widely, mostly because for some, little negotiation and therefore little time is taken up in drafting the agreement and for some, a lot of negotiation and therefore a lot of time is necessary. The range for most is in the $1,500 to $4,000 range.