"A father, by the law of God and nature, is bound to support his son and è contra, in case the father is impoverished."
Justice Windham, Manby v Scott

Parental support is the obligation an adult child may have to support his or her parent. To some, it is a complete reversal of the child support obligation. To others, it is just the other gentle slope of a lifelong family moral obligation.

But the cloud is growing as Justice Burnyeat wrote in Newson (1998, cited below):

"It is estimated that, by the year 2010, the number of Canadians 65 years or older will be nearly 4,000,000 and that, within the next 35 years, will be in excess of 8,000,000. As the birth rate is also declining, more parents will be supported by a lesser number of children. There may well be a corresponding increase in the percentage of financially dependent elderly people. If there is a resulting strain on social insurance, public assistance and personal assets, it is clear that there will be increased pressure on filial responsibility. Increased pressure on public assistance may well lead to federal and provincial governments looking to filial recovery on a more active basis."

Many Canadian provinces have parental obligation on their books but it is rarely invoked.

parental supportWhy not?

  • Many children already support their parents in need through an informal arrangement.
  • Many parents in-need already receive support from of state support: government welfare or pension sources; thus there is no need to call upon a child.
  • There is a stigma attached to parental support. All recognize the obligation of a parent to support a child but for a parent to be in need is a mark of economic failure, not readily and so publicly acknowledged by a senior.
  • The end-date of child supports varies from case to case but the oldest it has ever reached in reported Canadian law has been 26 (see Adult Child Support "Dad: Send Money"). If support obligations end as of independent adulthood, then why would it revive for seniors? Isn’t that discrimination based on age?
  • Many adult children have not "landed near the acorn tree" and have made choices and sacrifices to get to where they are. Why punish them for the choices of their parents?
  • Finally, to force a child to pay parental support means litigation which in and of itself is usually enough to sever a tenuous bond of love; again, not something most poor seniors wishes to jeopardize. They might get the money but they’ll be emotionally abandoned form child and grand-children.

Parental support is not known to the common law. The obligation has its origins in an era where poverty was rampant and the state, not then a purveyor of public welfare, looked to families to take care of their own.

Two successive pieces of relevant legislation were enacted during the reign of Elizabeth I (1597 and 1601). Appropriately called An Act for the Relief of the Poor, the British law only purported to help the "poor, old, blind, lame and impotent" to seek relief from their families and if it was not forthcoming, the family would be fined.

In 1948, England repealed the legal obligation of parental support but by that time, its colonies had already been sufficiently impressed with the concept to leave it on their law books.

And in Canada, for the most part, the obligation isstill just as it was with the Poor Act as the following words from a 1937 English family law book ring true:

"... until an order is made by the justices, there is only a moral obligation of a child to support his/her aged and poor parent. It is the making of the order that transmutes the moral into the positive obligation."

The Criminal Code includes this offence at §215(1)(c):

"Every one is under a legal duty ... to provide necessaries of life to a person under his charge if that person is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and is unable to provide himself with necessaries of life."

The most cited case under that section is R v Peterson in which a son was charged with failing to "provide necessaries of life" to his 84-year old father. According to the Ontario Court of Appeal, this was also the first reported conviction under this section of the Code.

Like in many parental support cases, the fact that the court was divided shows just how controversial this obligation is; or just how out of touch with reality a Court can be!

Even though the 84-year old refused to be placed in a care-home and was "fiercely independent", the son was convicted! One judge suggested a 6-month conditional sentence but the majority gave the son 6-months in jail!

This led Judge Borins to remark that:

"(T)he duty or responsibility of a child to be the caregiver of his or her aging parent and the criminalization of the failure .. are based on 19th century legislation that is completely unsuitable in the 21st century."

But some provinces, like Alberta, eliminated the legal obligation to support a parent in 2003, saying it was counter-productive to the government policy of senior independence.

In others, like British Columbia, the heartbeat of parental support obligation rings clear from within the pages of its family law.

In 1922, British Columbia enacted its Parents’ Maintenance Act which encouraged the police to report cases of parental support need and to allow such authorized third-parties to bring the application against family members on behalf of the "poor and destitute".

The legislation (now the Family Relations Act, §90), now defines a person entitled to parental support as:

"... a father or mother dependent on a child because of age, illness or economic circumstances.

"A (adult) child is liable to ... support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the (adult) child."

Similarly, §32 of Ontario's Family Law Act:

"Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so."

In one oft-cited British Columbia case, the style of cause reads like a who's who of the Newson family: Donald Newson v Marina Newson, Victoria Newson, Brock Newson, Christie Newson and Arthur Newson, took one of the judges 87-pages to set out his reasons for dismissing Donald Newson's application for support from his children, and eventually inspired five different published cases.

As Burnyeat wrote in his 1998 decision in Newson, albeit aimed at British Columbia statute, but given the good sense of it, likely relevant elsewhere in Canada where a similar obligation persists:

"The obligations that of each of the defendants (adult children) have to their own families will take priority over any obligations that they owe to the applicant;

"Any assets and income which are available to the (adult children/defendants) from their spouse or former spouses are not to be taken into account when determining whether, on the basis of their responsibilities and liabilities and their reasonable needs, they also have an ability to maintain and support the applicant;

"Evidence of abandonment, abuse and estrangement can be taken into account as one of the factors in the objective evaluation of the application;

"The length of the period of estrangement is also a factor to be taken into account in the objective evaluation of the application and the consequent ranking of the needs of the adult child; (and)

"A parent should first look to spousal support and, only if such support is not available, to then look to possible child support"

REFERENCES

  • Allan, M., Will You Still Need Me, Will You Still Need Me, When I’m 94? (Vancouver, The Advocate, Volume 66, Part 4, July 2008, pages 501-513).
  • Boyd, J-P., Aging, Death and Divorce: The Perfect Storm (Continuing Legal Education Society of British Columbia course materials re "Intergenerational Conflict", 2007).
  • Cairns, A., Evereley's Law of The Domestic Relations (London: Sweet & Maxwell, 1937), page 486.
  • Criminal Code of Canada, Revised Statutes of Canada, Chapter C-46, published at canlii.org/ca/sta/c-46/
  • Duhaime, Lloyd, Adult Child Support "Dad: Send Money", published at duhaime.org/LegalResources/FamilyLaw/LawArticle-291/Adult-Child-Support-Dad-Send-Money.aspx
  • Family Law Act, 1990 Revised Statutes of Ontario, Chapter F3, published at canlii.org/on/laws/sta/f-3/index.html
  • Family Relations Act, 1996 Revised Statutes of British Columbia, Chapter 128
  • Manby v Scott, 1 Levinz 4 (1672)
  • R v Peterson, 2001 Canadian Criminal Cases, 3rd, 220 (Ontario Court of Appeal).
  • Newson v Newson, 99 BCLR 2d 197 (1994, BCSC); 35 BCLR 3d 341 (1997, BCCA); 53 BCLR 3d 191 or 1998 BCJ. 751 (1998, BCSC); 39 RFL 4th 410 (1998, BCCA) and 65 BCLR 3d 22 (1998, BCCA).