Every jurisdiction in Canada has provided by statute for a parent to claim support from their adult child; the obligation imposed upon an adult child exists entirely in civil law since there are no corresponding criminal law provisions. The support obligation also has no history at common law. The filial support obligation originated in the Elizabethan Poor Laws as the state’s response to the difficulty of providing for the older members of the population. In Burgess, Judge Fisher stated he believed the Ontario provisions were added “to allow the State to make well-off children pay for parents in nursing homes rather than the State paying for them.” Yet, as Judge Fisher remarks, “the effect of [statutory filial support obligations] is far more sweeping.” Filial support obligations have the potential to enable any parent in need to directly claim support from their child, stepchild, grandchild, and, at least indirectly, from their child’s spouse.
To date, filial support legislation has been little used. Since 1982 there have been approximately twenty-three cases across Canada in which the issue of parents’ support has arisen, including cases that indirectly addressed this issue. The majority of these cases have arisen in Ontario (ten cases) and British Columbia (seven cases). As the population ages, and the average lifespan increases, this little-known area of law may become fertile ground for provincial governments seeking to recover the cost of caring for other people’s older relatives.
Provincial and territorial statutes are similar in their fundamental approach to the issue of parents’ support. In broad terms, an adult child is held obliged to support their parent when three requirements are satisfied: first, the parent has demonstrated the need for support; second, the parent cared for or supported the child against whom a claim is now being brought; third, the court is satisfied that the adult child is capable of providing support. The rest of this section will explore the circumstances in which the issue of filial support arises in a legal action, and the differences between various provinces’ and territories’ approaches, which relate to the necessary elements of the claim for support: who qualifies to make a claim, and against whom a claim can be made.
This paper is published as part of Nicholas Bala, Martha Shaffer, Lucinda Ferguson, “Family Law for the Older Canadian” in Ann Soden, ed., Advising the Older Client (Toronto, Ont.: Butterworths, 2005), and is also available here.