The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50827
LEGAL REPORT/FAMILY LAW My parents' keeper W ith many adult children choos- ing to take on the responsibil- ity 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 acceler- ate 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 sup- port, care, time, and energy, says Bala. Practitioners are divided on the value of parental-support laws. BY HELEN BURNETT-NICHOLS As well, over the last 40 years, a significant degree of gov- ernment support, such as the Canada Pension Plan and Old Age Security, has been built up, particu- larly for those over the age of 65. But also con- tributing to the lack of claims may be the fact that the elderly popu- lation 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 sur- prising if parental-support claims became more common in light of an aging popu- lation, 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 frustrat- ing 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 www.CANADIAN Lawyermag.com M A RCH 2011 39 Jeff szUc