Edmonton Sun

August 25, 2001

This wasn't what the act was intended for

By MINDELLE JACOBS -- Edmonton Sun

There's more bad news for parents who innocently assumed that financial obligations to their children ended when their kids were grown.

The first setback came several years ago when the judiciary interpreted the Divorce Act to mean estranged parents are required to support children attending post-secondary institutions.

Under the act, eligibility for support for the children of divorced parents doesn't end at 18.

Those children are entitled to parental support because of illness, disability "or other cause."

As the courts see it, "other cause" can include post-secondary education.

As a result, there are divorced parents all over the country forced to pay up while their kids go to university.

Children as old as 30 have taken advantage of the law to squeeze parents (usually the divorced dad) for post-secondary funding, says Edmonton lawyer Brenda Stothert-Kennedy.

Yet kids from intact families and the children of separated parents who never married have no entitlement to parental support after the age of majority.

Under Alberta's Parentage and Maintenance Act, for example, children only get support until they're 18.

But an Alberta judge's interpretation of another provincial law earlier this month means a lot more parents will be treated like instabanks while their kids are in university.

In his decision, Justice Jack Watson ruled a 19-year-old woman is eligible for support from her father while she attends university.

He based his ruling on the provincial Maintenance Order Act which sets out the responsibilities various family members have towards each other in the event of incapacity or poverty.

Relatives must support other family members who have become "old, blind, lame, mentally deficient or impotent."

They must also provide for relatives who have become "destitute" and not able to work.

There is no age limit for such maintenance.

It's highly unlikely the Maintenance Order Act was written with university students in mind.

However, Watson decided this particular case falls under the act because the 19-year-old woman can't work since she's attending university.

"I conclude that even talented young Albertans cannot readily perform two or more full-time burdensome and difficult tasks simultaneously," he wrote.

"University or other forms of post-secondary education are an economic reality nowadays for young people."

The young woman could even be seen as "destitute" in the context of the legislation, he said.

"There are a plethora of words given as having the same meaning as 'destitute,' some characterizing acute desperation, others not," he wrote.

"It has also been defined as equivalent to 'needy' and 'poor' and 'impoverished.' I cannot see that as involving a profound conceptual difference from the situation of a child unable to withdraw and obtain necessaries for herself."

In effect, Watson appears to have cast an extremely wide net that could leave a lot more parents at the mercy of greedy adult children.

The teenager in the centre of this particular fracas is the child of a couple who never married. The couple split up when the girl was young and the father paid child support until she was 18.

Under the Parentage and Maintenance Act, his financial obligations to his daughter ended there.

His ex-partner, however, went to court, arguing that adult children of unmarried parents should be eligible for parental support, just as the kids of divorced couples are.

Embarrassed that the province still discriminates against "illegitimate" children in its family law statutes, Alberta Justice officials invited the judge to broadly interpret the Maintenance Order Act to include the teen.

Watson obliged. "Every kid over 18 in Alberta can now turn around and sue their parents (for support)," says Stothert-Kennedy.

Mummy and daddy had better dig deep.

Mindelle can be reached by e-mail at mjacobs@edm.sunpub.com.
Letters to the editor should be sent to letters@edm.sunpub.com.

Copyright © 2001, Canoe Limited Partnership.