Child obligation to support parent

Ironically this topic is not often seen litigated in the Courts but as the baby boom generation ages, it will likely become more prevalent - no doubt litigation will ensue.

Note that Section 32 of the Family Law Act, R.S.O. 1990, c. F.3 provides that:

Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.

Recently this issue was canvassed by the Superior Court of Justice in the case of Dasklov v. Dasklov cited to 2007 CanLII 38563 (ON S.C.).

The case deals with a difficult situation where both the parent and the child are not of healthy financial means and the parent is forced out of the home they have lived in for the past 13 years.

I do not envy the position that Madam Justice McLaren was placed in when having to come to her decision.

The case involved an elderly parent who had treated a child as their own, had to transfer the home they lived in to their child to avoid creditors, and now required support in their old age. The litigation requested that the home be sold and the net proceeds shared as a lump sum of support being paid by the child to the parent.

The Court determined that the case was one that did not merit a child of limited financial means supporting their parent (who had a higher monlthy income that the child) or requiring an asset to be sold to satisfy a lump sum support award.

What is clear from the case is that the following factors should be taken into account when determining whether a child will be ordered to support a parent:

1. Can the child afford to support their parent?

2. Does the child have a family of their own requiring support?

I take from the case the following propositions set out by Justice Mclaren:

1. Lump sum support is ordered when there is some obligation to pay periodic ongoing support, along with some risk or concern that it will not be paid or cannot be paid; and,

2. The law on parent support does not require that a child has to encumber, or sell their only asset, (a home) in order to pay support to a parent who has more monthly income than the child.

The case is well worth a read and if anyone has dealt with this situation, please share your experience.

Child Support & Adult Children

As more and more children are seeking post-secondary degrees and diplomas this topic creeps into litigation and has to be dealt with.

Often this topic is best suited for negotiation as who really does not want to support their kids in school-related issues. I mean come on, how does one really say to a Judge, "my client doesn't want to support his son/daughter in college or university because...well..." you get the point.

That being said, a recent case really provides a good overview on how to analyze the issue. It is cited to Westlaw at Albert v. Albert (2007), 2007 CarswellOnt 4863 (S.C.J.).

The case is in line with the recent Ontario Court of Appeal case of Lewi v. Lewi (2006), 267 D.L.R. (4th) 193 in that it is clear that the child's contribution to their own education must be looked at.

The Court in Albert sets out the following useful three part test:

Step 1: Whether the child is a child of the marriage, that is, whether there is an entitlement to support;

Step 2" Whether the table amount of support is "inappropriate"; and,

Step 3: If it is inappropriate, the court needs to determine an appropriate amount, taking into account the condition, means, needs and other circumstances of the child and the financial ability of each of the parents.

Another thorny issue is whether the parents must support their child beyond a first degree. This is topical because it appears that one degree or diploma just does not cut it in the work world. So Albert sets out the following factors:

(i) the financial circumstances of the family;
(ii) the child's educational and career plans;
(iii) the child's age;
(iv) the child's academic performance;
(v) the family's educational expectations;
(vi) the parents' involvement in the decision-making process; and,
(vi) the extent to which the program prepares the child to become financially independent

Following in the footsteps of Lewi the presiding Judge in Albert imputed one-half of the child's summer earnings as their contribution to their own education. It appears that there are no free rides for kids.

Another issue which Albert addressed was the expenses beyond the "pure" education expenses and those not covered by the table amount. Such expenses could include setting up the children's apartments, clothes, travel etc...

The following documentary information should be sought from the client when dealing with adult children who are in school:

1. Make sure that the parent seeking reimbursement for non-direct school expenses keeps a detailed, and I mean detailed accounting of expenses, including, when it was incurred, whom it was incurred and the cost. Keep the receipts please!!
2. School-related expenses must be accounted for and receipts are needed (i.e. tuition receipts, residency fees, and meal plans etc...).
3. Report Cards.
4. Curriculum.
5. Children's RESP account statements.
6. Children's T4s and Record of Employment slips.
7. Children's Tax Returns.
8. Children's Investment Statements.
9. Children's interest in family trust and details of said trust.

I hope the above is helpful when dealing with this issue. Any thoughts or comments are always appreciated.