Did you know that adult children can be obligated to provide financial support to their parents much like parents are obligated to pay child support for their children? While Dragulin seemed to suggest that the Court only cares about the financial elements of the situation, LFD comes down hard on parental misconduct in making clear that ugly relationships between adult children and their parents can complicate the analysis and prevent parental support.
A Brief overview of Section 32 of the Family Law Act
In Ontario, parental support can be found in section 32 of the FLA. The Court must look at three factors in determining whether parental support is payable: the need of the parent, whether the parent provided care or support for the child in the past, and the capacity of the child to support the parent.
Dragulin v Dragulin, 1998 CarswellOnt 5271
In Dragulin, the father seeking support was 73 years old and unemployed. His government pension was approximately $12,000 per year. The daughter, 45 years old, was employed at Canada post and earning roughly $35,000 per year. Most significantly, the daughter had won over a million dollars in a lottery. In other words, the daughter had capacity to pay some level of support. The evidence was also clear that the father had financially supported his daughter when she was a child.
The Court examined the father’s financial statement, demonstrating his financial need. After removing several entries, including his claims for vacation expenses and gifts, the portion of support required for his spouse and other unnecessary expenses that did not relate to his personal care, the father demonstrated a need for financial support. After considering the father’s need, the Court awarded him approximately $400 per month payable by his daughter.
This was a relatively straightforward way of applying section 32 of the FLA. There are two noteworthy rules. In deciding whether a parent supported their child in the past, the analysis investigates the financial contribution by the parent. And in deciding whether the parent is in financial need, the Court will look at their financial budget and their ability to afford that budget. In other words, there is not much room for a child raising a defence, unless it relates to the finances of the parties. LFD changes things.
LFD v X, 2016 ONCJ 878
In LFD, the mother was in her 60s and on disability, living in a small and isolated municipality. She was seeking $3,000 per month in parental support, payable by her daughter. The mother argued that she provided her child with a luxury life when the child was growing up, including a $50,000 Bat Mitzvah. However, the evidence indicated that the mother engaged in both present and historical emotional abuse against her daughter. Thus, the daughter was seeking a restraining order against her mother in turn.
Like in Dragulin, there were three paramount issues to be determined: need of the parent, whether the parent provided care for the child in the past, and the child’s ability to pay.
The daughter was a lawyer and earning over $100,000 per year. Given her modest expenses, it was clear she had the ability to pay support to her mother. However, the mother was not successful on the other two issues.
While the mother did provide adequate financial support to her daughter as a child, the judge found that the mother also engaged in serious abuse against her daughter. The judge noted:
In this case, the Applicant's conduct is exceptionally bad. She alienated her daughter from her father, exposed her daughter to domestic violence during her childhood, has threatened her daughter, has had histrionic angry outbursts, has belittled her daughter, made false criminal allegations against her daughter., sued her daughter and her partner civilly, caused her daughter and her partners to pay large sums of legal fees, disrupted her daughter's marriage, threatened her career and slandered her character. The Respondent fears her mother. The Applicant's conduct destroyed the mother-daughter relationship. It is difficult to imagine circumstances which would more obviously and grossly repudiate a mother-daughter relationship. Frankly, the mother's abusive conduct towards her daughter over the years disentitles her to any parental support from her daughter. I can think of no clearer case based on this set of facts.
Thus, the judge went beyond financial support and looked at the general parental support the mother provided her daughter in the past, including things like emotional and psychological support. The judge also noted section 33(10) of the FLA—which addresses unconscionable conduct specifically in the analysis of spousal support—and applied it to this case. As a result, the mother did not demonstrate she provided adequate support for the child in the past.
While the mother demonstrated she was in financial need, the judge also extended the analysis from Dragulin on this issue as well. The judge noted that section 32 should not be akin to an absolute liability offence, whereby a parent’s financial need is all that is necessary in meeting the threshold for support. The judge went on to note:
During her evidence, the Applicant had minimal recall as to the sums of money she received from her three husbands or how the money was spent. She could only state the capital was all gone. The Applicant certainly received financial compensation from her three husbands and made personal decisions as to how she would spend her money. Despite the fact she would advise others she was in dire financial need, she continued to travel on a regular basis. The evidence clearly supported the Applicant was living way beyond her means and wishing to present herself to others (and herself no doubt) as a privileged individual.
While the Court may not have been convinced of the mother’s financial need, there was more to it. The judge noted, "[a] finding of entitlement to parental support from a child cannot be made in a vacuum without a fact-driven analysis of the history of the relationship between parent and child and the reasonableness of an Applicant's purported need, specifically including why that person finds him or herself in a situation of need at all." In other words, the judge seemed to imply that the mother was responsible for her bad financial position and so the daughter should not be required to foot the bill. While section 32 of the FLA looks like a simple analysis heavily skewed in favour of a parent seeking support, LFD raises new complexities in terms of opportunities for a child defending against the claim.
Obvious takeaways? For what seems like the first time in a parental support case, conduct of the parent really does matter. It is not the case that financial need of a parent, demonstrated historical financial contribution by the parent to the child, and the financial ability of the child to support their parent will automatically result in a parental support award. If a parent was abusive, this can heavily weigh against an award. If the parent was reckless with their money, causing financial need, this also can heavily weigh against parental support.
