Baby Boomers, COVID-19 and the Obligations of Adult Children
People in Ontario may be surprised to learn what the law says about supporting their aging parents
Tolstoy, to no one’s surprise, was not thinking about Ontario law when he wrote: "Happy families are all alike; every unhappy family is unhappy in its own way." What Tolstoy hadn’t contemplated and what may come as a surprise to many people in Ontario is that, regardless of how happy or unhappy their childhood was, they may find themselves in a position where they are legally obliged to financially support their aging parents.
This obligation is outlined in Section 32 of the Family Law Act (FLA). It is true that, to date, very few claims have been litigated under the section. Many adult children are able and willing to support their parents without legal intervention. And parents may be reluctant to initiate such legal action. However, demographic trends suggest this may be about to change.
The baby boom generation is living longer, which increases the likelihood that aging parents will outlive their retirement savings. At the same time, declining birth rates have left fewer adult children per family to share responsibility for their parents. Those adult children are also statistically less financially secure than previous generations and may find themselves with grown children of their own to support. And so they are ‘sandwiched,’ caught between the obligation to support both their own children, and their aging parents.
The Impact of COVID-19
Yes, these trends have been of concern for years. So why am I writing this blog post now? The answer, of course, is COVID-19. Many Canadians have faced financial stress during the pandemic - people are dipping into their savings or racking up debt to survive these challenging times. This trend is seen most disproportionately in young adults, felt to the greatest degree by those under 35.1
An additional stressor, both emotionally and financially, has been the outbreaks of COVID-19 in long term care homes. As a result of these outbreaks, there has been a trend toward adult children moving their parents out of care homes. This means additional expenses such as private caregiving costs or, if the parent moves in with their adult child, extra living expenses. At the same time, some elderly individuals who might otherwise move into care homes are instead opting to spend more money to remain independent. As a result, the resources of both the aging parent and their adult children are depleting at an accelerated rate.
Financial stress is frequently linked to family conflict.2 Increased stress within a family unit and growing financial instability caused by the pandemic, in combination with the demographic trends outlined above, may leave desperate parents with no choice but to bring a support claim against their adult children. That means now is a good time to review Section 32 and what it means for Ontarians.
The Law in Ontario
Section 32 of the FLA reads:
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.
This requires the claimant parent to demonstrate three things:
1.There is a genuine need for support;
2. The child can provide support;
3.The parent has, in the past, provided the child with support or care.
Need may be determined by a simple cash flow analysis, but the Courts also have taken a contextual approach. Courts have considered a parent’s lack of employment and inability to compete in the job market (Godwin)3 and a father’s inability to continue to work after an accident (Strovino)4 in assessing the parent claimant’s need.
Additionally, s. 33(9) includes a list of factors to consider when assessing the quantum of support, stating “need” should be viewed in light of the level of support the parent provided the child. In Dragulin5 this section was used to deny a parent from receiving an inequitable support payment from his daughter who had recently won the lottery.
While the basis for denial was lack of support or care, the Court in L.F.D v X.6 also considered the claimant’s tendency to spend extravagantly and recklessly with no regard to the future. This suggests the need must be reasonable.
Support or Care
The FLA doesn’t define “support or care” which complicates a seemingly easy question. To address this, Courts have considered the purpose of Section 32: the idea of co-dependency between child and parent. In Berendt,7 the Court used this interpretation to dismiss the application of a woman seeking support from her step-children - who became her step-children when they were in their 30s, never having any level of dependency on the claimant.
There appears to be a relatively low bar for “support or care.” In Godwin, the mother’s care wasn’t perfect – in fact, it was probably below the standard for parenting at the time – but it was enough to grant her entitlement to parent support. The mother had done the best she could given the circumstances and provided some, if minimal, financial and moral support to her children. Godwin also focused on the wording of “support or care” to emphasize only one of the two is required of the claimant parent.
Section 32 does not have a “fault-based” defence - once some level of support or care is found, a child cannot defend themselves by attacking the quality of that care or support (Godwin). This can have some unfortunate effects: in Dragulin, support was awarded to a father because he provided some financial support during his daughter’s childhood, despite evidence of verbal abuse and even estrangement from his daughter.
The Courts, however, have used discretion when considering the relationship between the claimant parent and the child. In L.F.D., the Court relied on evidence of serious abuse, estrangement, and criminal and civil proceedings to deny a finding that a claimant parent supported her daughter. This was so despite the mother having provided for basic needs during the daughter’s childhood. LFD also left the possibility for Section 33(10) (applicable to spousal support) to be used in parent support claims to present evidence of unconscionable parental conduct to justify disentitlement. It appears using the claimant’s behaviour as a shield against Section 32 claims is possible, but only for victims of the most serious abuse and family dysfunction.
Of the elements required for a Section 32 claim, the ability of a child to pay is the most rarely litigated in Ontario. An older case, Whitely v Brodie (1994)8 created a general rule of thumb for claimant parents: Courts should exhaust a spousal support order before turning to a Section 32 claim. This creates a hierarchy of sorts, with spousal support obligations ranking ahead of parental support. For determining the means of an adult child, the Court will ensure the child is meeting their own spousal and child support obligations before ordering they also support their parents.
Beyond the three heads of the support test, there are some other noteworthy factors for adult children to keep in mind in determining their support obligations:
Section 37(2) allows applications to vary a parent support order.
The FLA does not appear to allow for third parties to bring subrogated claims against adult children as they can for child and spousal support obligations.9
Section 32 obliges biological, adopted and step-children (Xue,10 Berendt).
The FLA has established a list of factors to consider when determining the quantum of support (FLA, Section 33(9)).
The Impact of Section 32
Any adult child with living parents should be aware of the above considerations and their legal obligations. And while the Courts have given us some things to keep in mind, they have also left much unanswered. Given shifting demographic trends and the ramifications of the pandemic, it may be sooner rather than later that the Courts begin to give us a clearer picture of what Section 32 will mean to the lives of Ontario families.
1Statistics Canada. 2020. “Work Interruptions and Financial Vulnerability.” Statistics Canada Catalog No. 45280001: <https://www150.statcan.gc.ca/n1/pub/45-28-0001/2020001/article/00010-eng.htm>.
2Gudmunson, C.G., Beutler, I.F., Israelsen, C.L. et al. Linking Financial Strain to Marital Instability: Examining the Roles of Emotional Distress and Marital Interaction. J Fam Econ Iss 28, 357–376 (2007).
3Godwin v Bolcso, 1993 CarswellOnt 305.
4Stravino v Buttinelli, 2018 ONSC 3429.
5Dragulin v Dragulin, 1997 CarswellOnt 5271.
6L.F.D. v X, 2016 ONCJ 878.
7Berendt v Berendt, 1987 CarswellOnt 257, interpreting s. 32 in the Family Law Act, SO 1980, c. 488.
8Whitely v Brodie, 199 WL1707851,  OJ No 1038).
9Supra at 471.
10Xue v Sun, 2017 ONSC 3429.