August 9, 2010

When Are You Legally Required to Support Your Parents?

The case of Ken Anderson, who along with his siblings, is being sued for financial support by the mother he says abandoned him at the age of fifteen, has raised all kinds of questions about whether kids can and should be legally responsible for caring for their elderly parents.  More cases of this kind are expected, given Canada's rapidly aging population. 

So how can parents sue their kids?  When will the court order children to pay support to their parents?  The legal requirement is found in section 90 of the B.C. Family Relations Act, a piece of provincial legislation that primarily governs the dissolution of relationships and child support and custody issues.  The provision states that "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."  Every province and territory in Canada has a law similar to B.C.'s section 90.

While there have not been many cases where the court has been asked to grant support to a parent, there have been a handful.  One of the leading decisions is a 1998 case called Newson v. Newson which bears some similarity to Mr. Anderson's situation; an elderly father asked the court to grant an order for support against his adult children, who to varying degrees had accused him of abuse and abandonment when they were children.  In drawing together the previous caselaw on the issue, including decisions from the United States and other provinces, the court found that the following factors were relevant in deciding whether to grant an order of support against adult children:
(a) The obligations that each of the adult children have to their own families will take priority over any obligations that they owe to their parent,

(b) Any assets and income which are available to the parent from their spouse or former spouses are not to be taken into account when determining whether, on the basis of their responsibilities and liabilities and their reasonable needs, they also have an ability to maintain and support the parent,

(c) Evidence of abandonment, abuse and estrangement can be taken into account as one of the factors,

(d) The length of the period of estrangement is also a factor to be taken into account in the objective evaluation of the application and the consequent ranking of the needs of the adult child,

(e) A parent should first look to spousal support and, only if such support is not available, to then look to possible child support.

On the basis of these factors, the court in Newson v. Newson refused to require the adult children to support their father, and ordered the father to pay the children's court costs.  It will be interesting to see if the court in Mr. Anderson's case reaches the same conclusion.