Dependant Support Claims
- Adult Support Obligations - Family Law Act
- Dependant Support Claims
- When is a Spouse Automatically a Dependant
Adult Support Obligations - Family Law Act
Unfortunately, we hear all too often of an elderly person living in poverty. While it is widely recognized and accepted that a parent has an obligation to financially support a minor child, it is less known that the law may impose an obligation on an adult child to financially support a parent.
The Parents' Maintenance Act was originally enacted in 1921. It was eventually superseded by section 17 of the Family Law Reform Act, which was, in turn, superseded by section 32 of the Family Law Act (the "FLA"). However, applications for support are extremely rare and there is little case law. However, the case of Godwin v. Bolcso  O.P.J. No. 297 provides some insight into when support will be ordered for parents. Today, I will discuss the facts. Tomorrow, I will discuss the law and the court's decision.
Veronica Godwin was born September 18, 1934. She applied for support under section 32 of the FLA against four of her adult children. The only issue was whether the children were liable to pay support. Section 32 of the FLA states as follows:
Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who cared for or provided support for the child, to the extent that the child is capable of doing so.
The adult children took the position that Veronica's care and support of them was so substandard when they were children that it fell far below generally accepted parenting norms. As a result, the children argued that the test in section 32 was not met. For her part, Veronica maintained that she had adequately provided and cared for her children to the best of her ability.
In considering the evidence, the court held that there was no evidence of Veronica being selfish or lazy or putting her own needs ahead of her children. There were many things that Veronica did for her sons and daughters. For example, the children took part in extracurricular activities. Moreover, all family members shared in the maintenance of the household - cleaning, laundry, meal preparation and vegetable gardening. While the family moved frequently, all the homes that they lived in were suitable single-family dwellings where the children sometimes shared bedrooms, had a yard in which to play, and were near schools.
There was no evidence according to the court of the family being supported emotionally or financially by relatives or friends. According to the court, more modern concepts of imbuing in children a sense of self-worth and self-confidence were not widely accepted in the 1950s and 1960s, if discussed at all. What the family concentrated on was financial survival.
The adult children complained, sometimes bitterly, that they were not raised in a warm, nurturing home. The adult children claimed that their mother was suspicious of authority, secretive, a chronic complainer, critical of others, set in her ways, and not open to their viewpoints.
In considering the evidence, the court recognized that children could not always be expected to recall incidents of early childhood as well as their parents. Some may not even recall their childhood at all. Furthermore, an adult's early childhood recollections could also be misconstrued after so many years, or facts may have existed that were unknown to a child at the time of occurrence.
According to the court, section 32 of the FLA required three questions to be asked: (1) Did Veronica provide support to her children? (2) Did she provide care? (3) Was she in financial need?
The court held that Veronica was, in fact, in financial need. Given her age, Veronica had difficulty securing employment. She owed income tax. Veronica also had health needs and could not afford proper medical care.
In terms of care and support, the question the court posed was what care and support for children would reasonably have been expected from a parent in the circumstances in which the family found itself? Minimum or maximum measurements were to be avoided.
The court defined support as such things as housing, food, clothing, health, recreational activities, vacation, travelling expenses, as well as nursing and medical attention during illness. Reasonable care was defined as such care as an ordinarily prudent person would exercise under the conditions existing at the time he or she was called upon to act.
The Court found that Veronica did provide as much care as reasonably might be expected of her in the circumstances. Moreover, the conditions existing in the 1950s and 1960s were relevant in judging Veronica's level and skill of parenting.
In the end, the court held that Veronica's children had a financial obligation to support their mother and so ordered. The court invited the parties to agree on an amount; otherwise the court would fix an amount. The court also declined to impose a termination date and held that support could run for an indefinite period of time.
In conclusion, the Godwin case stands for the clear proposition that a court can order a child to financially support a destitute parent, who had provided the requisite level of care in support.
Dependant Support ClaimsThis is a PDF document. Click here to view.
When is a Spouse Automatically a Dependant
In Re Cooper, the trial judge held that the applicant, Mrs. Hampton, had failed to fit herself within the definition of a "dependant" as defined in the Act. Mrs. Hampton appealed to the Divisional Court, which ultimately allowed the appeal.
Mr. Cooper died intestate such that his insurance and pension monies would go to Mrs. Cooper (his first wife) and the Cooper children would inherit the balance of the estate.
Mrs. Hampton and Mr. Cooper had been living together in a common-law relationship for over 7 years right up until Mr. Cooper's death. The evidence made it clear that Mr. Cooper and Mrs. Hampton acted like a normal married couple.
The most interesting aspect of the case to me is that the Divisional Court held that the issue of support was not contingent on one person making a greater financial contribution than another. In sharing common expenses, a couple, married or not, were supporting each other.
According to the Divisional Court, Mrs. Hampton was a dependant of the deceased within the meaning of the SLRA. Mr. Cooper was also providing support, or was under a legal obligation to provide support, immediately before his death. The court determined that the obligation to provide support to the other spouse remained as long as the relationship of the two parties as spouses continued notwithstanding that Mrs. Hampton was not receiving actual support from Mr. Cooper before his death and regardless of whether Mrs. Hampton could have successfully made a claim for support while Mr. Cooper was alive.
Re Cooper stands for the proposition that a spouse (married, common-law, or same sex) automatically qualifies as a dependant. The issue then becomes whether the spouse is entitled to a dependant support order in the circumstances.