Common-Law Separation and Custody Rights in New Brunswick

If you're separating from a common-law partner in New Brunswick and you have children together, the parenting rules are almost identical to those for married couples — but the property rules are completely different. Understanding where your rights are equal and where they diverge is critical.

Parenting Rights: Same as Married Couples

Under the New Brunswick Family Law Act, common-law parents have the same rights and obligations regarding their children as married parents. This means:

• Decision-making responsibility can be shared jointly, divided by area, or allocated solely — same options as married parents
• Parenting time is determined by the same best-interests-of-the-child factors
• Child support is calculated using the same Federal Child Support Guidelines and Table amounts
• The same 40% shared parenting threshold applies for calculating support
• Both parents can apply for parenting orders through the Court of King's Bench, Family Division

The key difference is procedural: because you're not married, you're not filing for divorce. Your parenting and support applications are filed under the Family Law Act, not the Divorce Act. The filing fee is C$75 for a standalone parenting application (vs. C$110 for a divorce petition).

Property Division: Where It Gets Complicated

This is where common-law separation in NB differs dramatically from divorce. The Marital Property Act — which creates a presumption of equal division of marital assets — applies only to married couples.

Common-law partners have no automatic right to equal property division. If your partner owns the house, has the car in their name, or holds the bank accounts, you don't get a 50% share just because you lived together. Instead, property disputes are governed by common-law equitable principles, which means you must prove you made a direct contribution (money, labour, or time) to acquire or maintain the asset.

This makes it even more important to get the parenting and support arrangements right — child support and any spousal-type support may be the only financial protection available.

Child Support for Common-Law Parents

Child support obligations are identical for common-law and married parents. The Federal Child Support Guidelines apply regardless of marital status:

• The Table amount is based on the paying parent's gross annual income
• The 40% shared parenting threshold applies — if each parent has the child at least 146 days per year, support is calculated using the set-off method
• Section 7 extraordinary expenses (childcare, medical, educational, extracurricular) are shared proportionally based on each parent's income
• Both parents must provide full financial disclosure, including three years of tax returns and current pay stubs

The one wrinkle: spousal support is not guaranteed for common-law partners the way it is for married spouses. Under the Family Law Act, common-law partners who have cohabited for at least three continuous years (or have a child together) can apply for spousal support, but the bar is higher than for divorced spouses.

How to Get a Parenting Order

The process for common-law parents follows the same court tracks as divorced parents:

In Saint John or Moncton (Rule 81): File Form 81A (Application) with the Court of King's Bench, Family Division. Your case will be triaged through a Case Management Master.

In all other judicial districts (Rule 72): File a standalone application for a parenting order. You'll follow the standard Rule 72 filing and service process.

The filing fee for a standalone parenting/support application is C$75 — less than the C$110 required for a divorce petition, because you're not paying the Central Registry clearance fee.

In both tracks, you'll need to complete the Parent Information Program (PIP) and, if financial matters are involved, file Form 72J (Financial Statement) with full financial disclosure.

Separation Agreements for Common-Law Partners

Even though you can't file for divorce, you can create a legally binding domestic contract (separation agreement) that covers:

• Decision-making responsibility and parenting time
• Child support and Section 7 expense sharing
• Any spousal support terms
• How shared property will be divided (especially important since the Marital Property Act doesn't apply to you)

A signed separation agreement can be filed with the court and enforced like a court order, provided both partners had independent legal advice or at least the opportunity to obtain it.

Protecting Your Parenting Arrangement

Whether you and your co-parent agree on terms or need the court to decide, document everything in a formal parenting plan or consent order. Informal verbal agreements aren't enforceable. The New Brunswick Child Custody & Parenting Plan Guide covers the filing process for common-law parents with worksheets for building a parenting plan that meets NB court requirements.

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