Estate Planning

Family Obligations

By Hull and Hull LLP

Moral and legal obligations overlap when the Legislature or the Courts make laws respecting the governance of family relationships.  For example, science tells us that we have a moral obligation to care for our minor children hardwired into our DNA.  And the common law has clearly defined the fiduciary duty that overlays this moral obligation.

Conversely, at the other end of our life, the reciprocal duties between parents and their adult children are not always as clear cut.  As my colleague Natalia Angelini pointed out in a recent blog, the Courts in British Columbia have applied the applicable provincial statute to legally enforce a parent's moral obligation to provide a fair share of his or her estate to their adult children.  In Ontario, where there is not the same statutory authority, the Court of Appeal has nonetheless observed the existence of moral obligations that exist between parents and children. 

While, in Ontario, the legal enforcement of the moral obligation to provide support to adult children from one's estate appears to first require dependency, the situation is less clear where parents are in need of support from their adult children. This may be a developing area of law for the family law bar.  More than one commentator has predicted an increase in the seldom used provision of the Family Law Act mandating adult children to support their parents as the demographic shift to a more aged population continues.

On a closing note it is interesting to note that China is considering imposing a legal obligation on adult children to visit their aged parents. As reported by CNN: "A draft amendment to China's 'Elderly Law' requiring the children of elderly Chinese to visit home more often is being considered by the government. If passed, it would require children to care for their parents' 'spiritual needs and cannot neglect or isolate them.'

David M. Smith

Full post as published by Toronto Estate Law Blog on January 19, 2011 (boomark / email).