Parental Support – Hull on Estates #236

January 25, 2011 Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, Show Notes, Show Notes Tags: , , 0 Comments

 

Listen: Parental Support

This week on Hull on Estates, Paul Trudelle and Sharon Davis discuss filial responsibility or parental support. Specifically they talk about Sections 32 of the Family Law Act which discusses the obligation of a child to support a parent.

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Paul E. Trudelle Click here for more information on Paul Trudelle.

Sharon Davis – Click here for more information on Sharon Davis.

 

Parental Support – Hull on Estates- Episode #236

Posted on January 25, 2011 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to episode 236 on Tuesday, January 25, 2011.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Sharon Davis: Hi, welcome. I’m Sharon Davis.

Paul Trudelle: And I’m Paul Trudelle.

Sharon Davis: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle: So Sharon, how are you today?

Sharon Davis: I’m very well thanks, Paul. And you?

Paul Trudelle: Very good, thanks. We thought we’d spend some time today talking about an area of the law that isn’t often explored but it’s something that may be of increasing relevance as time goes on It’s something that I came across while listening to CBC Radio 1 the other day and it’s the topic of filial responsibility, or parental support.

Sharon Davis: Yes, it’s a topic I’m very interested in. I myself have two children and my husband and I decided that we would have a second child in case the first one didn’t like us enough to look after us in old age. 

Paul Trudelle: That’s good. Hedge your bets, right, out a little bit. Yes, I hope my kids are listening because I’m depending on their support as well. So if they’re listening, maybe we’ll get right into it. There is legislation in Ontario and in a number of other provinces in Canada as well that requires that a child support their parents. Maybe we’ll turn to that specific legislation.

Sharon Davis: That’s right. It’s Section 32, the obligation of a child to support a parent.

Paul Trudelle: Sorry, that’s the Family Law Act, is that right?

Sharon Davis: Yes, the Family Law Act. It’s important to know which Act you’re in, isn’t it, when you’re looking at legislation.

Paul Trudelle: Makes it a bit easier to find.

Sharon Davis: Courts are very picky about those details.

Paul Trudelle: They are.

Sharon Davis: In the Family Law Act, Section 32, every child who is not a minor has an obligation to 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.

Paul Trudelle: Right. And there’s been a few cases in Ontario and other jurisdictions as well that deal with that. The case law that we’ve seen and looked at states that a few factors or a few hurdles will have to be established before support will be ordered. The first is that the parent have that relationship with the child. The parent provided some support for the child during the lifetime and that’s what triggers the responsibility of the child to give support later on.

Sharon Davis: That’s right. And that’s a financial support. So if the child has had any financial support from a parent, then that’s going to meet the first hurdle. The second hurdle is, the child actually has to have the ability to pay the support.

Paul Trudelle: Right. And in any other factor, the Court looks at is, amongst the various factors that the Court can consider in determining the amount and type of support, is the need of the parent. One of the things…one of the cases that we’ve come across that dealt with this is a 1993 decision of Godwin and Balsco. In there, the Court said that although the mother didn’t provide what may be called exemplary support, there was some support financial best that the mother could do and there was also moral support and instillation of some values. And that was enough to find that the mother was entitled to some support from the child.

Sharon Davis: That’s right. There is another case and I know I’m going to mispronounce the name, Skrzypacz and Skrzypacz . I’m gonna have to give you the citation for this one. It’s 22 RFL (4th) 450. And in this case, the mother sought support from her adult son and while the mother was in need of financial assistance, the fact was that the mother never did provide any support to the son when he was a child. In fact, she did not provide sufficient details to show that she did look after the son. And he claimed that the mom abandoned him when he was an infant and that he was raised by his maternal grandparents. So in that case, the threshold was not met.

Paul Trudelle: I think that that sort of shines a light on the type of case that develops under this. It gets into…the Courts will consider the history of the support that the parent gave to the child during the child’s infancy and then jumps forward to the present time and looks at the support that the parent may need and the child’s ability to contribute to that. So there’s a lot that the Court has to look at and consider in making a determination as to whether (a) the parent is entitled to support and (b) what type of support should be given.

Sharon Davis: That’s right. There are…there’s not a lot of case law out here on this, of course. There are a few cases but certainly it’s not something that comes up very often. The most recent case that I was able to find is a 2007 case, Daskalov v. Daskalov. And in this case, it was a step-mom but the parties had agreed that in fact the step-mom did qualify as a parent under Section 1 of the Family Law Act. And the situation was a bit of a sad one really because the son in fact had been diagnosed with cancer. And when they actually examined, you know, the means and needs of the parties, it turned out that the mom did have some need but the son did not have the capacity to pay. And in fact the mom had a 25% higher income due to her pensions than the son did. And of course the son with cancer had no ability to work or to earn any further income. And so in that case, the mom’s application was dismissed.

But you know I think that even though we haven’t seen too many cases like this to date, certainly you know with aging baby boomers and such, having provided lots of financial assistance, I would expect, to children through the years, this may very well become an issue and we might see more case law on it.

Paul Trudelle: Right. The Family Law Act sets out a section that itemizes what considerations are to be taken into account when determining the amount of support, such as the dependant’s and the claimant’s current assets and means, ability to contribute to their own support, the respondent’s or the child’s capacity to support, the party’s age and mental health. There’s a number of factors set out there. They’re similar to what we see when we’re making dependant’s support claims under the Succession Law Reform Act upon the death of a party and there is a claim for dependant’s support against the estate. So there’s a wide array of factors that the Court can take into account. Just to segue into the Succession Law Reform Act, we know that under the Succession Law Reform Act there is an obligation for parties to provide support for their dependants. A dependant is defined in the Succession Law Reform Act as including a parent and this section under the Family Law Act will satisfy the condition that the party…the claimant to be receiving support will have a legal right to support. So I think that if the claim can be made against the child for support by the parent under the Family Law Act, a similar type of claim can be made by a parent against a child under the Succession Law Reform Act if the child was to die and not provide adequate support for the parent. So I think there’s case law and the sections are relevant while the child is alive and also if the child was to pass away and the parent would have a right to make a claim under the Succession Law Reform Act for support as well.

Sharon Davis: Right. Well I certainly think that there’s room for overlap there and we’ll have to wait and see how…what the case law does and where it goes.

Paul Trudelle: Right. But I think it’s important for parties and counsel to be aware that this provision exists, that there is this responsibility created by the statute law to provide support for parents while alive and most likely upon death, as well, of the child. And that’s something that is an important remedy that’s available to parents who find themselves without sufficient assets and means and who aren’t being properly supported by their children.

Sharon Davis: That’s right. And people who might not recognize they have those rights. And certainly, you know, from the lawyer’s perspective, making sure that all of those angles are looked at and assessed properly.

Paul Trudelle: Right. Okay. Well thank you very much, Sharon.

Sharon Davis: Thanks Paul. It was a pleasure. I look forward to podcasting with you again soon.

Paul Trudelle: Thank you. And we look forward to hearing from you, our listeners. And you can send us an email at hull.lawyers@gmail.com and be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on issues that affect the practice of estate litigation and estate planning.

We hope you enjoyed our show. I’m Paul Trudelle.

Sharon Davis: And I’m Sharon Davis. Until next week, so long.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

 

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

 

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

 

 

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