Child and Spousal Support With Common Law Separations

Generally, married couples and common law couples that have separated are treated by the courts in the same way when it comes to spousal support.

There might be a tendency to go a little bit lower in the amount of support order with the common law relationship than with married couples, but generally the same principles and considerations apply. The big difference between marriage and common law separations have more to do with the division of property than spousal support.

In a common law relationship or a marriage, the way the child-related issues are treated is exactly the same. The first question the judges always ask is: what’s in the best interest of the children? They try to determine the residence of the children based on that principle, and then whoever is not living with the children pays child support in accordance to the child support guidelines. There is a grid that says exactly what that payer should pay based on their income, regardless of the other person’s income. The court does not care if people are married or unmarried. If you are the biological parent then you have an obligation to pay child support.

If a woman or a man comes into a relationship with a child from another marriage, and their common law spouse takes over a parenting role, that person would generally be required to pay child support. This is called standing in locus parentis. For example, the courts look at how long you have been living with the children, whether you were involved in disciplining them, you attended parent-teacher interviews, you were called “dad” or “mom”, you helped financially support the children and all of the other circumstances to determine whether you are “in locus parentis”.

The situation is more complicated when there is a biological father. There can still be child support paid by the stepfather if he has become like a father to the child, but often the courts start with the assumption that the biological father should pay the full amount in accordance with the child support guidelines. Then they look at the income of the stepfather and what the guidelines say he should be paying. Often there is a reduction in the stepfather’s obligation but it depends on what the biological parent is paying. If he is paying a trivial amount of support because his income is so low, and the stepfather has a substantial income, then the stepfather might be ordered to pay almost the whole amount that the guideline suggests based on his income. The first obligation is from the biological parent. They are going to pay the full amount as dictated by the guidelines. Then the secondary obligation is the in locus parentis parent or what we would commonly call the step parent.

The same principles that apply to heterosexual couples apply to same sex couples in every respect, whether they have a child together or whether they have property that they acquired together and whether they were married or common law. Exactly the same principles and the same laws govern their separation. There is no difference whatsoever.


If you, or someone you care about, is dealing with family law issues in the Barrie, Ontario Region, contact Galbraith Family Law for a consultation.

This article is taken from an interview with Brian Galbraith, Family Lawyer with Galbraith Family Law, a Barrie Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.