Earlier this week I blogged about the definition of “dependant” under the Substitute Decisions Act, suggesting the inclusion of the present tense requirement for there to be an “obligation” to provide support suggested there must already be a legal requirement to provide support before an individual could qualify as a “dependant” under the Substitute Decisions Act to whom the Attorney for Property may be required to pay support. In that blog I suggested the Family Law Act may be the source of such an “obligation” to support the dependant. But what does the support of “dependants” under the Family Law Act look like?
The definition of “dependant” under the Family Law Act is substantially similar to the definition under the Substitute Decisions Act, being: “a person to whom another has an obligation to provide support under this Part”. The inclusion of the phrase “under this Part” in the definition is perhaps notable, as it appears to restrict the definition to those individuals who are entitled to receive support under the part of the statute in which the definition is contained, being Part III. If you are not entitled to receive a support order under Part III, you do not meet the definition of “dependant” under the Family Law Act.
Part III of the Family Law Act contains pathways to support for dependants in differing family structures and relationships, including section 30 and the obligation to provide support to a spouse, section 31 and the obligation for a parent to support their children, and even section 32 and an obligation for adult children to support their parents (which I blogged about earlier this week). Upon becoming a “dependant” under Part III of the Family Law Act, section 33 allows the court to make an order for support in favour of the dependant.
The requirement for a parent to support their adult children under section 31 of the Family Law Act is not absolute, and is perhaps notably more restrictive than the requirements under the Succession Law Reform Act for support after death. Unlike the Succession Law Reform Act, which allows any adult child to qualify as a dependant so long as they were being provided with support by the deceased parent immediately prior to their death, the children to whom support may be payable under section 31 of the Family Law Act is much more limited. Section 31 of the Family Law Act notes only a child who meets one of the following definitions is entitled to support: (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
An interesting thought experiment could be to apply questions surrounding the need for an Attorney for Property to support the incapable individual’s dependants under section 37 of the Substitute Decisions Act with a common hypothetical used when discussing support obligations, namely the proverbial adult child who doesn’t have a job and lives rent free in their parent’s basement. In the event the adult child does not have some illness or other disability which causes them to be unable to “withdraw from the charge” of their parents, it is unlikely such an adult child would be able to obtain an order for support as a dependant of their parent under the Family Law Act. Assuming there is no other statute or legal principle under which the adult child could obtain an “obligation” for their parent to provide them support, it would bring into question whether the adult child could qualify as a “dependant” under the Substitute Decisions Act who would have standing to require the Attorney for Property to pay support. This is potentially in contrast to the same adult child without a job living rent free in their parent’s house should their parent have died, as it is likely such an adult child would qualify as a dependant who may be entitled to receive support from their parent’s estate under Part V of the Succession Law Reform Act.
Thank you for reading.