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Top Five Questions About the Children of Common-Law Relationships

Top Five Questions About the Children of Common-Law Relationships

Common-law relationships are very common in today’s society.  Nonetheless, the legal issues surrounding support obligations or adoption by a non-parent are often not well understood.   Here are the top five points to note:

1) Is a common-law spouse obliged to pay child support?

As with parents who are formally married, the common-law parents of a child are both equally responsible for support.   This obligation lasts until the child reaches the age of majority (age 18 in Ontario), but can extend beyond that point if the child remains dependent because of disability, illness, or because he or she is pursuing post-secondary education.

2) Who pays support for a step-child?

A person who enters into a common-law relationship with someone who already has children may have to support a step-child.  It depends on whether in light of all the circumstances he or she qualifies as a “parent” under the Ontario Family Law Act, which definition includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”

3) What if you want to adopt your spouse’s child?

A person who wants to adopt the child of a common-law spouse can only do so if the child’s other biological parent is prepared to give up his or her rights.  Once such an adoption takes place, the adoptive parent assumes all of the responsibilities of the biological parent in connection with the child, including the obligation to pay child support.

4) Who gets custody of a child if common-law partners break up?

Ideally, if common-law spouses decide to separate, they can amicably decide which of them should have primary custody of the child, and how access arrangements are going to be structured.   Any minor disputes about the scope or range of decision-making, or the nature, extent and scheduling of access, can be worked out with the assistance of a family law mediator.

However, if the common-law partners/parents cannot agree, then a judge may have to make a binding decision that will settle any outstanding matters.   As with children of parents who are formally married to each other, the governing principle to be applied to these decisions is always the best interests of the child.

5) Can a common-law couple adopt a child?

In Ontario, common-law spouses have the same rights as married spouses to adopt a child; they are also subject to the exact same requirements.  These include the requirement that they have both reached the age of 18, that they provide certain documents (e.g. medical reports, police clearance reports, letters of reference, financial statements, and similar) and that they participate in both a home study process and an education program.   The home study may be completed either privately, or by a Children’s Aid social worker.

For more information about the obligations that may arise in connection with children of parents in a common law relationship, contact us as www.RussellAlexander.com.