With many adult children choosing to take on the responsibility of financially supporting a parent in need, elderly moms and dads heading to court to demand support from kids who are unwilling to pay has proved a rare situation across the country. But as Statistics Canada projects the aging of Canada’s population to rapidly accelerate over the next 25 years, lawyers are divided on the question of whether parental-support cases could become a more prevalent trend.
In all provinces except Alberta, the possibility for a parent in need to sue an adult child for support exists, and has done for generations. Queen’s University Faculty of Law professor Nicholas Bala says filial support obligations were introduced in most provinces during the Depression, when there were no government programs to support the elderly. At the same time, there have only been a handful of reported cases over the past 10 years or so, he explains, with one of the usual characteristics being a lot of family tension, not because of the litigation but going back decades.
Family lawyer Lisa Slater, a partner in the Vancouver office of Davis LLP, was called to the bar in British Columbia in 1996 and says she has never brought a case for parental support. “I think you’d find very few lawyers who have.”
One reason these types of claims are rare is that many middle-aged children who have the means already provide their elderly parents with financial support, care, time, and energy, says Bala. As well, over the last 40 years, a significant degree of government support, such as the Canada Pension Plan and Old Age Security, has been built up, particularly for those over the age of 65. But also contributing to the lack of claims may be the fact that the elderly population seeking parental support is generally underprivileged, with more limited access to justice through the court system, says Slater, while other issues such as the hostility that this type of litigation can create within families may also come into play.
In a 2007 report, the British Columbia Law Institute explained that during its 85-year history, the parental-support law has rarely been invoked, but more cases did appear in the 1990s and 2000s, concentrated in Ontario and British Columbia. One such case is Anderson v. Anderson, currently before the B.C. Supreme Court. The decade-long case involves 72-year-old Shirley Anderson, who is seeking financial support from her estranged adult children, one of whom says he was let go from the family at 15. The case was most recently adjourned in December 2010.
While there is not a groundswell of cases at the moment, it would not be surprising if parental-support claims became more common in light of an aging population, says Gerald Sadvari, a partner with McCarthy Tétrault LLP in Toronto. “When one extrapolates 10 years into the future, you can well imagine that there will be more such cases for the obvious reasons, with an aging population and a next generation which has done well financially, and perhaps a lot better than their parents,” he says.
However, in some parts of the country, this may be beside the point. Alberta, for example, repealed the parental-support provision in 2005 when it updated its Family Law Act. In British Columbia, the B.C. Law Institute recommended the repeal of s. 90 of the Family Relations Act in a 2007 report. The BCLI said the section does not meet the practical needs of poor older adults, the litigation it generates “shows real signs of frustrating those older adults, their families, and the courts”, and that parental support is an “outdated concept that does not fit well with contemporary society.” The institute also said action should be taken now “before demographic trends create even more pressure on British Columbia’s parental support law.” In the summer of 2010, B.C.’s Ministry of Attorney General released its white paper on reforms to the Family Relations Act, which recommended s. 90 be dropped from the new statute, as it is “rarely used” and “creates more problems than it solves.”
Rather than seeing more of these cases, “I think the stand of the British Columbia Ministry of the Attorney General really indicates where we’re probably going to be going,” says Bala. He adds the legislation doesn’t fit with current thinking about how to care for the elderly, and other measures, such as leave for workers whose elderly parents are sick, could better help adults care for their parents. “I think that what we’re trying to do is have more support, including more family support, recognizing the pressure of the so-called ‘sandwich generation’ and I think that this kind of situation really cuts against that,” he says. “Objectively, I believe it should be taken out. There are numerous facilities available to people and the reality is . . . if a child is going to help their parent, they’re going to do it out of love of the parent and not out of an obligation,” says Vancouver lawyer Stanley Schwartz, who is representing one of the respondents in Anderson.
Another problem with respect to the legislation as it stands is the cost of litigation relative to the potential support award. “There may be more time and energy spent by the lawyers litigating this than there is ever going to be successfully recovered,” says Bala. Victoria lawyer Donald McLeod, who represented the plaintiff in Anderson for two-and-a-half years through the Access Pro Bono Society of British Columbia, recently withdrew from the file. He explains that after five different trial dates, adjournments, and related travel expenses, he has already spent more than twice what the pro bono society provides and cannot continue to devote resources to the case.
With the view that this will be a growing area, McLeod says rather than repealing the section, it should be strengthened to provide clear guidelines as to when and under what circumstances a child is obligated to support a parent, as well as a statutory regime setting levels of support. He says this would likely do away with the need for a great deal of litigation. Perhaps the most significant factor in favour of retaining parental-support legislation is to protect the elderly against poverty through support from their extended family, to compel children to contribute to their parents’ support if they don’t see themselves as having a moral obligation to do so, says Slater.
Also, while government programs do exist, they are a limited means of support and many individuals aren’t entitled to CPP, for example, adds Georgina Carson, a partner with MacDonald & Partners LLP in Toronto and chairwoman of the Ontario Bar Association’s family law section.
McLeod says it is a political decision as to whether or not parental support should remain in B.C.’s Family Relations Act, in terms of deciding whether or not impoverished parents should look first to the taxpayer for support or their family. “It seems to me to be somewhat incongruous that you would have a law that says if a couple separates, then the impoverished spouse looks to the other spouse first for support before the welfare system; if a couple splits and there are children, then the children have a right of support from the parents before they’re supported by welfare. And it seems to me that parents, if they’re impoverished, should also have a right to look to their family for support before they look to their fellow taxpayers,” he says.
In Ontario, there haven’t been any requests to repeal s. 32 of the Family Law Act because it has been used in very limited and appropriate circumstances, says Sadvari. “If it starts coming in the door, we’re going to start talking about it and there may be then the same sort of reaction as in B.C., encouraging governments to do something about it, but it’s been so limited that it just hasn’t raised that red flag in Ontario,” he says. Carson agrees, saying, “My sense is that s. 32 is not going to disappear in Ontario and that we may well see additional claims in the future. But the good news is that most families have an intact fabric of connection and we’re not going to be seeing a lot of parents running out and suing their kids.”
In Ontario and Prince Edward Island, there is also the qualifier that the parental-support law can only apply to a parent who has cared for or provided support to a child, says Brian Waddell, a partner with Stewart McKelvey in Charlottetown and the Canadian Bar Association national family law branch section chairman for P.E.I. “You won’t necessarily get into sort of a claim by a parent who hasn’t seen the child in 25 years suddenly coming out of the woodwork and making a claim. There has to be that sort of connection there, where the parent has cared for the child, it’s a quid pro quo,” he says.
Other considerations in these cases include the parent’s need and the child’s ability to pay, taking their other responsibilities into account, such as minor children. The “big unknown,” says Sadvari, is whether parental support is going to become a more normal type of claim where there’s the ability to pay and a need, even if that need is to go on nicer vacations, as opposed to putting bread on the table. “At this point, we really don’t know whether it’s going to explode and become a new industry for lawyers or it’s still going to be the rarity that it has been to date,” he says.