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May 31, 2016

Parents Supporting Children: A Voluntary Act Or Legal Obligation?

by Steve Benmor

Steven BenmoreWhen parents are together, they can decide to stop supporting their child when he or she turns 18. But if they separate, one parent can force the other parent to pay child support under Ontario law, namely, the Child Support Guidelines.

When parents are together, they can decide on what, if any, extra-curricular activities to enroll their child in. But if they separate, one parent can force the other parent to pay a part of the cost under Ontario law.

When parents are together, they can insist that their child fund his or her university costs through employment and loans. But if they separate, one parent can force the other parent to cover part of the cost of university including tuition, residence and meals under Ontario law.

When a parent makes a will, that parent can decide to not leave anything to his or her minor child upon his or her death. But if the parents separate before death, the surviving parent can force the estate of the deceased parent to pay child support under the dependent’s relief provisions of Ontario’s Succession Law Reform Act.

When a parent makes a will, that parent can decide to not leave anything to his or her adult child upon his death. But can the adult child challenge that will and seek a payout from his or her parent's estate anyhow?

That was the question posed to the Ontario Court of Appeal in the case of Verch Estate v. Weckwerth, 2014 ONCA 338 (CanLII). The adult children of George Verch discovered that they had been written out of their father's will and took legal action to collect a share of the estate. They argued that their father had a "moral obligation" to provide for them in his will. The main thrust of their legal argument was that "a competent testator’s autonomous distribution of his or her property, as reflected in a properly executed will, may be displaced or set aside by the courts in the exercise of their discretion based on a parent’s moral obligation to provide on death for his or her independent, adult children."

The highest court refused to accept this proposition and dismissed the appeal.

The interplay of family law and estate law provides a fascinating glimpse into the evolution of societal norms regarding a parent's financial responsibility for children, as reflected by statute and case law.

 

Steve Benmor is certified as a specialist in family law by the Law Society of Upper Canada and also serves as a private divorce mediator and arbitrator for high net worth families. Steve can be reached at steve@benmor.com