Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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“You never call”: a common lament of elderly parents aimed at their adult children. Now, it appears that failing to call, or more specifically, to visit your parents in China may result in legal action.

According to a recent Toronto Star article, China has recently amended its law on the elderly to require that adult children visit their parents “often”, or risk being sued by them. 

China, perhaps more than any other country, is facing a significant issue with its aging population. In just fifty years, the average life expectancy soared from 41 to 73. Coupled with family planning policies that limit most families to a single child, and a lack of affordable options for the care of the elderly, such as retirement or nursing homes, this has led to an elder care crisis. The legislation is aimed at assisting the elderly in seeking care.

While the legislation may seem extreme, there is already legislation on the books in Ontario to a similar effect. While it does not require visits, section 32 of the Family Law Act provides that an adult child 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.”

The Ontario provision was applied in a few reported decisions. It was discussed in an adoption decision, Re Proposed Adoption of Q.(A.L.K.). There, the court noted that “dependencies shift” from parent to child, and an adult child has a “clear responsibility … to shore up the parent’s own financial resources, if the parent has need of that.”

Note to my children: Govern yourselves accordingly, Christopher and Marc.

Have a great weekend.

Paul Trudelle

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13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

See also Schnurr B.A., "Estate Litigation - Requirement of Corroboration", 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert's opinion.

The expert's opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

In support of that opinion, corroborative evidence should be obtained from as many medical institutions as possible. Evidence from the medical records of the child would presumably refer to long-term psychiatric care and, in particular, some reference to the abuse over the years.

To further assist, every effort should be made to obtain supporting corroborative evidence from family, friends and neighbours. In my view, anyone who has even a brief recollection of instances, such as the police showing up at the house for no apparent reason, episodes of yelling and screaming, or witnessing the actual physical attacks, can make or break a case.

 It seems to me that, given the frailties of the evidence that must be led, one really must obtain a comprehensive and supportive expert's opinion, at a minimum.

Another precautionary consideration that should be reviewed with any child who is considering pursuing a claim for breach of fiduciary duty of parental obligations, is the nature of the evidence that must be led. In order to succeed, the child must be prepared to give full and frank disclosure of his/her physical and mental condition - and in many cases, this won't be easy.

All the best, Ian and Suzana.

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As is sometimes the case, an unequal distribution of an estate as between children can arise from a testator who has had a long history of mental illness, chronic alcoholism or other such personal reasons, which may affect the testator's state of mind over a period of many years.

For example, if a child who has been treated unequally grew up in a home where he or she suffered through instances of physical violence, as between the parents and him or herself, this may be the type of fact situation to consider when looking to pursue a claim for breach of fiduciary duty of parental obligations. Similarly, if the unequally treated child lived in a home that was constantly in turmoil, as a result of a chronically alcoholic parent, this situation should also be considered in the context of the fiduciary obligations of a parent.

In our view, one must find several compelling supporting facts to bolster any claim of breach of fiduciary duty or breach of parental obligation. Such facts should also be combined with a clear and identifiable estrangement as between parent and child.

Parental Obligations

In the decision of M. (K.) v. M. (H), the Supreme Court of Canada considered the whole concept of what is meant by the term "parental obligation".

The Court considered this issue in the context of a particularly gruesome and egregious set of facts.

In M.(K.) v. M.(H.), the Supreme Court of Canada examined the parent-child relationship in the circumstances of long-standing allegations of incest and abuse by a parent to a child.

In this case, the child was a victim of incest and abuse which began when she was eight years of age and continued until she was seventeen, when she finally left home. Over the years, after she had left home, she told some individuals, including her husband, of the abuse. The child also sought counselling for depression and marital problems, and saw various medical practitioners who assisted her from time to time.

At the trial, the child retained a psychiatrist who testified that while the child had briefly dealt with the issues of incest in her early adulthood, she did not have an emotional awareness of the situation and was not able to assess her situation rationally.

The child sued her father for damages arising from the incest or, in the alternative, for the infliction of mental distress. Further damages were claimed for breach of parent's fiduciary duty to care for and minister to his child.

Counsel for the child argued that the incest constituted not only the tort of assault and battery but also a breach of fiduciary relationship between parent and child.

In a future blog, we will address the question of the fiduciary duty between a parent and a child, and discuss what the Court held in this important case.

All the best, Suzana and Ian. --------