Short answer: In British Columbia, an unmarried partner can claim spousal support if the couple lived in a marriage-like relationship for at least two continuous years, or had a child together and lived together for any length of time. Sexual orientation makes no difference to this test. Support is not automatic — you first have to prove entitlement, then amount and length are worked out using the Spousal Support Advisory Guidelines. The claim must usually be started within two years of separation.
In BC spousal support obligations arise on breakdown of a relationship – even if the couple were not married – provided that the couple lived in a “marriage-like” relationship for a continuous period of at least two years. For many years, the courts grappled with what it means to be in an opposite-sex “marriage-like” relationship. In Molodowich v. Penttinen, [1980] O.J. No. 1904 (Ont. Dist. Ct.), the court set out what are now generally accepted characteristics of a marriage-like relationship. In a previous post, I discussed those generally accepted criteria and how they apply when determining BC spousal support obligations at the end of a common-law relationship.
BC spousal support for same-sex common-law couples
The Supreme Court of Canada took the analysis from Molodowich a step further in M. v. H., [1999] 2 SCR 3 (S.C.C.) a decision in which the court held that it was discriminatory for same-sex couples to be excluded from spousal support provisions in Ontario’s Family Law Act. Justice Cory, writing for the majority, approved of the criteria identified in Molodowich and found that same-sex couples and opposite-sex couples share the same functional elements and are equally able to be “conjugal” or marriage-like in quality.
BC spousal support law recognizes no two relationships are identical
The generally accepted characteristics of a marriage-like relationship include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, BC spousal support law recognizes that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be marriage-like.
In order to come within the definition of “spouse” for the purposes of determining whether BC spousal support is payable, neither opposite-sex couples nor same-sex couples are required to fit precisely into the traditional marital model. Even 20 years ago when it released its decision in M. v. H., the Supreme Court of Canada recognized that the differences between same-sex and opposite-sex couples are no greater than the differences across all types of relationships (at para. 60):
Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely. […].
Take home point on BC spousal support for common-law same-sex couples
BC spousal support law recognizes common-law relationships between same-sex couples after the couple has been in a marriage-like relationship for a period of at least two years. The approach to determining whether a relationship was “marriage-like”, and thus whether BC spousal support obligations have arisen, is flexible and recognizes that the relationships of all couples will vary widely. If you have questions about your entitlement to BC spousal support, call (604) 900-2538 to arrange an appointment with one of the team of experienced family lawyers at Onyx Law Group.
What the Family Law Act actually requires
The equality principle from M. v. H. is now written straight into British Columbia’s statute, so the argument that once had to be fought in court is settled law. Section 3 of the Family Law Act (SBC 2011, c. 25) defines a “spouse” without a single word about gender or sexual orientation. You are a spouse if you are married, or if you lived with another person in a marriage-like relationship for a continuous period of at least two years. For spousal support specifically, there is a second route: partners who have a child together are spouses even if they lived together for less than two years.
That child-based route catches people by surprise, because it does not carry over to property. A couple who share a child but lived together for only a year can owe or claim spousal support, yet they have no automatic right to divide each other’s property under Part 5 of the Act. Same-sex and opposite-sex couples sit under the identical rule. The statute treats the relationships the same way; the only questions left are factual ones about how you actually lived.
Entitlement comes before any dollar figure
Meeting the spouse definition gets you through the door. It does not, on its own, mean support is owed. A claimant has to show entitlement, and BC law recognizes three grounds for it:
- Compensatory. The relationship, or its ending, left you economically worse off — you left a job, moved for your partner’s career, or took on the unpaid work at home while the other partner built earning power. Support compensates for that disadvantage.
- Non-compensatory (needs-based). Even without a career sacrifice, the breakdown left you in real financial hardship while your former partner can manage. Support responds to that gap.
- Contractual. The two of you agreed on support, in a cohabitation agreement or a separation agreement, and that promise is enforceable on its terms.
The objectives and factors a court weighs live in Part 7 of the Family Law Act (sections 160 to 162): the length of the relationship, the roles each person played, the financial position each is left in, and the goal of encouraging self-sufficiency where that is realistic. A long relationship with a clear economic imbalance points strongly toward entitlement; a short one between two self-supporting people often does not.
How amount and duration get set
Once entitlement is established, the conversation moves to the Spousal Support Advisory Guidelines (SSAG). These are advisory — they are not law, and no judge is bound to the number they produce — but they are used across the province as the working starting point. They generate a range for the monthly amount and a range for how long support runs, and they use a different formula depending on whether child support is also being paid. Duration usually tracks the length of the relationship, and relationships of many years can produce open-ended, reviewable support rather than a fixed end date. Because the SSAG give a range rather than a single answer, most of the real negotiation is about where inside that range your case lands, which turns on the income evidence and the strength of the entitlement argument.
The deadline that ends the claim
There is a hard limit that unmarried partners in particular need to watch. Under section 198 of the Family Law Act, a former unmarried spouse must start a spousal support claim within two years of the date of separation. Miss that window and the right to ask a court for support can be lost, no matter how strong the underlying case would have been. Married spouses run on a different clock tied to divorce, but for common-law couples — including same-sex couples relying on the two-year cohabitation test — the separation date starts a two-year countdown. If you are unsure when your relationship legally “separated,” that date is worth pinning down early, because it drives both entitlement and the deadline.
Frequently asked questions
Do same-sex common-law couples have the same spousal support rights as opposite-sex couples in BC?
Yes. Section 3 of the Family Law Act defines a spouse without reference to gender or sexual orientation. A same-sex couple who lived together in a marriage-like relationship for at least two continuous years, or who had a child together and lived together for any period, have the same spousal support rights and obligations as any other couple. The Supreme Court of Canada settled the equality question in M. v. H., and BC’s statute now reflects it directly.
How long do we have to live together before spousal support can apply?
The general threshold is a continuous marriage-like relationship of at least two years. There is one exception for support: if you and your partner have a child together, you can be spouses for spousal support purposes even if you lived together for less than two years. That shortcut applies to support only, not to property division.
Is spousal support automatic once we qualify as spouses?
No. Meeting the definition of spouse is only the first step. The person asking for support still has to prove entitlement on one of three bases: compensatory, meaning the relationship left them economically disadvantaged; non-compensatory, meaning need arising from the breakdown; or contractual, meaning the couple agreed to it. Without entitlement, no support is ordered regardless of how long you lived together.
How is the amount and length of spousal support decided?
Once entitlement is established, lawyers and judges use the Spousal Support Advisory Guidelines to work out amount and duration. The Guidelines are advisory, not binding law. They produce a range rather than a single figure, using a different formula depending on whether child support is also being paid, and duration is usually tied to the length of the relationship.
Is there a deadline to claim spousal support after separation?
Yes. Under section 198 of the Family Law Act, a former unmarried spouse generally must start a spousal support claim within two years of the date of separation. Missing that deadline can end the right to claim, so the separation date matters and is worth confirming early.
Disclaimer: This page is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC law and procedure change, and the outcome of any case depends on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia family lawyer. Illustrative examples do not guarantee similar outcomes in any specific case.