To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations. My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as “Family Law” obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens. I argue that the persuasive force of the focus on an individual’s responsibility for another’s financial need has obscured the reality of the state’s obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?
This paper is published in (2008) 22 International Journal of Law, Policy, and the Family 61-90, and also available here.
The Supreme Court of Canada recently heard argument on the circumstances in which retroactive child support orders are justified. The claimants are four Alberta fathers who have been held subject to retroactive support obligations that extend to before the custodial parent’s application for variation of the existing order. The fathers argue that these orders are unfair and not justified by the Federal Child Support Guidelines. Supporting their argument is the position of courts in British Columbia, Ontario and Saskatchewan; these courts have adopted a more restrictive interpretation of the circumstances that justify retroactive orders than has the Alberta Court of Appeal.
This brief comment addresses the critical theory issues before the Court. First, is it the obligation or merely the extent of the obligation that is retroactive? Is the idea of retroactivity in the context of the child support obligation a misnomer? Second, what is the nature of the child support obligation? Third, and consequently, in what circumstances is a retroactive order justified?
This paper is published in (2006) 43 Alberta Law Review 1049, and also available here.
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.