20 September 2011

Parental Support in British Columbia

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

CBC, the Victoria Times Colonist and Global (video) have reached reported, with varying degrees of accuracy and inaccuracy, on a case currently before the British Columbia Supreme Court involving an aged mother's claim for parental support from her adult children. Parental support claims are exceedingly rare, likely because of the enormous degree of family dysfunction which must exist before a parent brings a lawsuit against his or own children, and as a result such claims are poorly understood. Let me set the record straight.

Background

Legislation on parental support first entered the books in 1922 in the midst of the financial tumult following the end of the First World War, in the form of the Parents' Maintenance Act. Since there wasn't a Hansard transcript back then, all we know about the intention of the legislature comes from the closing remarks of the Administrator, as recorded in the Journals of the Legislative Assembly:
"In relieving you from your legislative duties, it is with pleasure that I express my appreciation of the earnestness with which you have applied yourselves to the important questions submitted for your consideration.

"I note with gratification the humanitarian aim of measures to provide for the maintenance of the children of unmarried parents, and for the support of needy parents by their children."
The new act imposed a duty on children to provide for the support of their parents, and allowed a parent in financial need because of "age, disease or infirmity" to apply for an order requiring the child to pay parental support.

The Parents' Maintenance Act continued until 1972 when it was repealed and its core provisions merged into the new Family Relations Act, now s. 90 of the current act, as follows:
Obligation to support parent

90 (1) In this section:

"child" means an adult child of a parent;

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

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

Treatment by the Courts

Despite the fact that legislation on parental support has been around for about 90 years, very few people have actually advanced claims for child support, in fact there are only nine or ten reported decisions on the subject! Those nine or ten cases are enough, however, to get a sense of how the court has handled parental support claims, and here's a summary of the basic principles:

  1. The adult child's need to support him- or herself, a spouse and any children rank ahead of the adult child's obligation to support a parent. (Hua v. Lam, 1985 BC Provincial Court)
  2. Any estrangement between the adult child and his or her parent, and the reasons for that estrangement, are factors to be taken into account in ranking the needs of the adult child. (Newson v. Newson, 1997 BC Court of Appeal)
  3. Support may be payable when the conduct of the adult child has caused the dependence of the parent. (Peach v. Emlyn, 1999 BC Supreme Court)
  4. When the parent seeking support has a spouse, the parent must first look to his or her spouse for support before claiming it from any adult children. (Puskeppelies v. Puskeppelies, 1997 BC Supreme Court)
  5. A parent liable to pay spousal support cannot apply for parental support for the spouse in order to duck the spousal support obligation. (Smeland v. Smeland, 1997 BC Supreme Court)
The Future of Parental Support

In the white paper (PDF) on family law reform, published last summer by the Attorney General, the government proposed not to carry provisions for parental support forward into any new law which might replace the Family Relations Act. This would effectively terminate further applications for parental support if the Family Relations Act is repealed, and seems to be a sensible decision given the well-reasoned recommendations of the British Columbia Law Institute in its 2007 report on the subject.

You can find additional information about parental support on my website in the first chapter of the Other Family Law Issues section.

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