Children Neglected When Young Held Not Liable To Support Mother

Children Neglected When Young Held Not Liable To Support Mother

Adult Children Who Were Neglected When Young Held Not Liable To Support Manipulative Mother

Anderson v Anderson, Doko and others 2013 BCSC 129 is sort of a “shoe on the other foot” vantage  from the usual case blogged by

Here an elderly mother brought court action against  three surviving grown children of her own, mostly in their 50’s, for monthly financial support based on her need.

The court found that two of the three children could not afford to pay support for their mother.

The third, while financially able to do do, was held not liable to do so by reason of the neglect and lack of proper parental leadership of the mother to her children when the children was in their formative years.

The Court follows the guidelines of Newson v Newson (1997) 35 BCLR (3d) (C.A.), as follows:

The claim is brought pursuant to s. 90 of the Family Relations Act, R.S.B.C. 1996, c. 128 (the “Act’), which provides:

(1) In this section:

“child” means an adult child of a parent;

“parent” means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.

(2) 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.

[5]      This section was repealed on November 25, 2011, as a result of the operation of ss. 258 and 482 of the Family Law Act, S.B.C. 2011, c. 25. The repeal of s. 90 followed the release of the White Paper on Family Relations Act Reform which was published by the Justice Services Branch on July 6, 2010. The white paper noted that s. 90 was rarely used and that it “creates more problems than it solves. The cost for an elderly parent to sue an adult child for parental support could often exceed the amount of support ordered, and such litigation is likely to damage the relationship between adult child and parent.” As a result of the repeal of s. 90, this decision is of interest to the litigants but has no precedential value.

[6]       There are few reported decisions considering s. 90 or its predecessor sections. In Hua v. Lam, [1985] B.C.J. No. 2706 (P.C.), the court considered the differences in the Act between the various obligations a person has to support his or her children, a spouse and parents. By analyzing the interplay of the provisions in the Act, Collings P.C.J, concluded at para. 29:

The result of my reading of s. 58(2) [now s. 90(2)] is that the obligations to support a child or a spouse rank ahead of the obligation to support a parent. To put that another way round, the funds available must be applied first to support the child and the spouse, and only after those obligations have been fulfilled should they be applied to support the parent.

[7]      The conclusion in Hua was implicitly approved in Newson v. Newson (1997), 35 B.C.L.R. (3d) 341 (C.A.), the leading case in British Columbia on the application of s. 90 of the Act. In Newson, the court considered an application for interim parental support by a father against his estranged children, none of whom were providing support to him at the time of the application. The court allowed the father’s appeal, overturned the dismissal of the father’s application and remitted the matter to the Supreme Court for determination. In doing so, the court determined that the section does not require a parent to demonstrate an existing dependency upon an adult child before he or she can seek support. The word “dependent” in the definition of “parent” is to be given its primary meaning of financial dependence. However, the court also concluded as follows at para. 35:

S-s.(2) of s.58 [now s. 90] qualifies the adult child’s liability to maintain and support a parent in want for the reasons stated in s-s.(1) in these terms:”… having regard to the other responsibilities and liabilities and the reasonable needs of the child”. These are words broad enough to enable the court to consider nearly all, if not all, of the children’s objections to alleviating the parent’s need. Specifically, the period of and the reasons for the estrangement of parent and children are factors to be taken into account in the objective evaluation and consequent ranking of the needs of the adult child.


[8]       In Newson v. Newson (1998), 65 B.C.L.R. (3d) 22 (C.A.) [Newson 2], the court was again called upon to consider the dismissal of the father’s application for interim support. The father was homeless and in need of financial assistance. The court was critical of the approach taken by the chambers judge who made extensive findings of fact including a determination that the father had abused the children. The court found that it was not appropriate on an interim application to make findings of fact which could potentially embarrass the trial judge. The court found that the father had made out a prima facie case of entitlement and that two of the children had a financial surplus. The court ordered them to pay $200 per month. In doing so, the court stated at para. 15:

In the present case we are of the view the father has made out a prima facie case of entitlement. The circumstances of the children must be considered in a manner that avoids “thrashing out the merits of the case”. On an interim application these would include their financial circumstances and responsibilities and the long period of separation between them and the father. In our view, the unadorned facts of separation and estrangement would relieve the court from considering any moral claim on the part of the father to a lifestyle comparable to that of any one of the children. There would then remain for consideration whether relief is needed to relieve the more emergent consequences of indigence and of the financial circumstances and responsibilities of the children in this context.

[9]      In S.A.G. v. M.R.G., 2000 BCPC 45, a mother who was estranged from her son sought parental support from him sufficient to put her on similar economic terms. His annual income was approximately equal to his reasonable expenses including annual RRSP contributions. The court found that the applicant’s conduct, even though it led to the estrangement, did not disentitle her to support. After examining the income and expenses of both parties, Gillis P.C.J. concluded at para. 57:

The result is that the son, though liable to pay maintenance for his mother’s support, does not have sufficient funds to pay any amount.

[10]    The final decision commenting on s. 90 of the Act is Master Donaldson’s ruling on the interim application in this case: Anderson v. Anderson, [2000] B.C.J. No. 2694 (S.C.) [Anderson #1]. His review of the authorities led him, at para. 13:

… to several conclusions, not the least of which is that in determining the ability to pay maintenance for a parent the existing needs of the child’s present family must first be considered; and secondly, that one is required to take into account only the child’s own income and not that of his or her spouse.

[11]    The limited jurisprudence has established the following approach to claims for parental support:

a)      The first step is to examine the applicant’s financial circumstances as well as her health and personal circumstances to determine if she is financially dependent.

b)       After examining those circumstances if it is determined that the applicant is financially dependent – in other words her assets and ability to earn income are not sufficient to enable her to support herself- then she has an entitlement to support under s. 90.

c)     The next step is to examine the means of the children from whom support is sought as well as their responsibilities, liabilities and reasonable needs. If it is determined that a child has an excess of income over his or her reasonable expenses for responsibilities, liabilities and needs, an order for support may be made.

d)     At the final stage, the court should examine the other circumstances of the parent/child relationship to determine the level of support. At this stage of the analysis, the reasons for and the length of any estrangement between them “are factors to be taken into account in the objective evaluation and consequent ranking of the needs of the adult child”: Newson. Estrangement may lead the court to conclude that a parent has no moral claim to a lifestyle comparable to that of any of her children.

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