Last British Columbia Decision on Parental Support Released

The Supreme Court has just released its decision in the very last claim for parental support that will ever be heard in this province.

In Anderson v. Anderson and others, a mother sued her five adult child for parental support. The case began in 2000 with an interim order that each of the children pay their mother $10 per month. The mother lost her appeal of the interim decision, and the case lay dormant until 2008 when she filed a Notice of Intention to Proceed. Although the case was again beset by delay, it was at last heard at a summary trial in the summer of 2012.

Without getting into the nuts and bolts of the decision, the court held that none of the children had the means to pay parental support to their mother once their incomes had been applied to cover the needs of their own families, and that even if the children had the means to pay parental support, the mother was not morally entitled to support as a result of her historic treatment of the children and their present estrangement from her.

Section 90 of the Family Relations Act, the section which allowed parents to sue their adult children for support, was repealed on 24 November 2011 when the Family Law Act received royal assent. Although the essential concept of parental support has a long history in British Columbia, being first implemented in the 1920s in the economic turmoil following the end of the first World War, the present legislature seems to have considered the section to be the cause of too much domestic strife and to provide too little return for too much costs to be allowed to survive. Justly so.

The Early and Unlamented Deaths of ss. 90 and 120.1:Government takes quick action on parental support and unmarried persons' property agreements

I've had the opportunity to take a more in depth reading of the transitional and repeal provisions of the Family Law Act, largely as a result of some issues brought to my attention by Nate Russell of Courthouse Libraries BC.

The nuts and bolts of the new Family Law Act run from ss. 1 to 244. The government's power to make the host of new regulations the act will require runs from ss. 245 to 249. The transitional provisions — the sections which guide the changes from the old Family Relations Act to the new Family Law Act — are brief and run from ss. 250 to 256. The really dry stuff, about the other laws that will be changed or repealed to accommodate the new act run from s. 257 all the way through to s. 482 and are dreadfully dry reading. This is, however, where you can find the really interesting things which motivated the call from Nate.

At the end of the act, further to s. 482, is a table showing which parts of the act come into force upon the act receiving Royal Assent which will come into force down the road by Order in Council. As readers will recall, the Attorney General has announced that implementation of the act will take 12 to 18 months. However, a close look at the table shows that some parts of the act will come into effect the moment the bill receives Royal Assent, two or three days after it clears Third Reading, and won't need to wait for the eventual Order in Council. (Read my post "The Present Effect of the Proposed Family Law Act" for a brief discussion about how a bill becomes law.) An acquaintance at the Attorney General's office has confirmed that this is indeed the intention behind s. 482.

Apart from some minor housekeeping changing references to "husband and wife" to "spouse," the provisions coming into effect right away will:

• make the Land (Spouse Protection) Act available to unmarried spouses,
• repeal the provisions of the Family Relations Act for parental support (s. 90), and
• repeal other provisions relating to the effect of property agreements between unmarried couples (s. 120.1).

The last point is the most important, I think, although frankly the repeal of parental support is a close runner up. (Read my post "Parental Support in British Columbia" for an explanation of this subject.)

If you go back to my post "Why you DON'T want a cohabitation agreement," you'll see a long explanation about how s. 120.1 made the property rules applicable to married couples applicable to unmarried couples who had the misfortune to make an agreement about property. This meant that cohabitation agreements were usually very bad for the person owning property, as they could produce a far worse result than the worst case result without an agreement.

The repeal of s. 120.1 now means that unmarried couples can go ahead and enter into property agreements now before the rest of the Family Law Act comes into effect without getting caught by the unexpected and frankly counterintuitive consequences of s. 120.1. In other words, unmarried couples can make an agreement now to avoid the property sharing provisions of the new act without worrying about the negative consequences of the old act.

My thanks again to Nate for pointing this out.

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.