Common Law Custody in BC: Parenting Rights for Unmarried Parents

If you're separating from a common-law partner in British Columbia and you have children together, here's the most important thing to know: your parenting rights are virtually identical to those of married parents. The Family Law Act treats common-law and married parents the same way when it comes to guardianship, parenting time, and parental responsibilities.

The differences show up in procedure and property — not in your rights as a parent.

Guardianship Is Automatic (Usually)

Under BC's Family Law Act, both parents are automatic guardians of their child if they lived together at any point after the child was born. It doesn't matter that you weren't married. If you cohabited as a couple while raising the child, you are both guardians with equal legal standing.

This means both parents have the right to:

• Parenting time (the child living with them during designated periods)
• Parental responsibilities (making major decisions about education, healthcare, religion, and extracurricular activities)
• Access to the child's medical, educational, and other records

Guardianship survives separation automatically. Neither parent loses guardianship status simply because the relationship ends — it continues unless a written agreement or court order says otherwise.

When Guardianship Isn't Automatic

There's one important exception: if a parent has never lived with the child, they are not an automatic guardian. This can happen when:

• The parents separated before the child was born and never cohabited afterward
• One parent was absent from the child's life from birth
• A parent was unaware of the child's existence

A non-cohabiting parent can still become a guardian through a written agreement with the existing guardian or by applying to court. The court will evaluate whether adding this person as a guardian serves the child's best interests.

How Common-Law Separation Differs From Divorce

The parenting framework is the same, but the procedural pathway has some differences:

No divorce required. Common-law partners don't need a divorce order — there's no marriage to dissolve. This means the entire separation can be handled in Provincial Court (which has zero filing fees) rather than Supreme Court.

Property rules have a trigger. Under the FLA, common-law partners must have cohabited in a "marriage-like relationship" for at least two continuous years to access the family property division regime. If your relationship was shorter than two years, the equal-division presumption doesn't apply to you — though your parenting rights are unaffected.

Provincial Court handles most of it. Since common-law separations don't involve a divorce order or property division (which require Supreme Court), you can resolve parenting arrangements, child support, and spousal support entirely through Provincial Court's free Early Resolution Process.

Child Support Works the Same Way

Child support obligations are identical for common-law and married parents. The Federal Child Support Guidelines apply regardless of marital status. The amount is based on the paying parent's income and the number of children, with the same 40% shared parenting threshold that triggers the set-off calculation.

Both parents are entitled to request full financial disclosure from the other, including tax returns, Notices of Assessment, and pay stubs. The obligation to support a child is the child's right — it cannot be waived by either parent.

Steps to Formalize Your Arrangement

Even though common-law parents have automatic guardianship rights, having nothing in writing creates conflict. Without a formal agreement:

• Neither parent has an enforceable schedule
• Disputes over decision-making have no resolution framework
• Child support may not be calculated or paid consistently
• Travel and passport applications become difficult without documented consent

You can formalize your arrangement through:

1. A written separation agreement — Both parents negotiate terms, put them in writing, and sign. This is enforceable in court but doesn't require court involvement to create.
2. A consent order — Both parents agree on terms and file them with the Provincial Court as a consent order. This gives the arrangement the force of a court order.
3. A contested court application — If you can't agree, either parent can file Form 3 in Provincial Court to have a judge decide.

Building a Parenting Plan Without a Divorce Framework

Because common-law separations don't have the structured divorce process that married couples follow, many unmarried parents struggle to know where to start. The British Columbia Child Custody & Parenting Plan Guide provides the same step-by-step framework regardless of marital status — from guardianship documentation to parenting schedules to child support calculations — tailored specifically to BC's Family Law Act.

See more British Columbia guides →