In a recent decision, the Court of Appeal considered whether an application for retroactive child support could be brought against an estate. 

Motion Brought Against Trustee of Estate

In Blacklock v. Tkacz, an Appellant brought a motion against the trustee of the estate of her deceased husband for retroactive child support payments. The Appellant was the ex-wife of the deceased. The parties divorced in 1978 and the Supreme Court in a proceeding under the Divorce Act, granted the appellant a Decree Nisi. The Decree Nisi granted the appellant custody of the two children of the marriage and ordered the deceased to pay a nominal amount of child support: $20 in child support per week. The Decree Nisi did not provide that the child support obligations would be binding on the deceased’s estate. The Appellant brought an application against the deceased’s estate seeking retroactive child support payments and to vary the couple’s 1978 child support order. 

In considering the case, the motion judge dismissed the motion, finding that under section 17 of the Divorce Act, an application cannot be brought to claim or vary a support order against a deceased’s estate if the original order is silent on whether that order binds the estate. In reaching this conclusion, the court relied on a previous Court of Appeal case, Katz v. Katz which stated:

[I]t has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary.

The appellant then appealed the motion judge’s decision to the Court of Appeal.

Court of Appeal Decision  

The Appellant argued that the death of a support payor does not eradicate pre-death, unpaid debts arising from the non-payment of support. One of the payment obligations which arises from a support order imposed under the Divorce Act where the support payor later dies is retroactive increases in the quantum of child support for the pre-death period. The Appellant asserted that this is “an existing, enforceable (by payee) debt and liability of the estate. According to the Appellant, the Court of Appeal decision in Katz v. Katz did not stand for the proposition that a proceeding could not be brought, post-death, against an executor, absent special wording in the child support order, and, if any restriction exists, it does not affect the child support obligation that arose prior to the payor’s death.

The Divorce Act Requires a Specific Agreement to Bind the Estate 

The Court of Appeal considered whether the motion judge erred in dismissing the motion because the application was related strictly to the payor’s lifetime on a retroactive basis. The Court of Appeal upheld the lower court’s decision and dismissed the appeal. The Court upheld the finding in Katz v. Katz and confirmed that the Divorce Act does not contain a provision similar to section 34(4) of the Family Law Act, which specifically provides that an order for support binds the estate of the person having the support obligation. Specifically, under section 34(4) of the Family Law Act, “[a]n order for support binds the estate of the person having the support obligations unless the order provides otherwise.” Given this wording, the court has found that because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation.

The Wording in Divorce Act Differs from the Family Law Act 

Unlike the Family Law Act wording noted above, there is no similar provision in the Divorce Act that makes a support order binding on a payor’s estate. On the contrary, it has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary. While there are conflicting authorities across Canada concerning whether a court may order that support payments under divorce legislation are binding on the payor’s estate, the prevailing authority in Ontario “has long been that the court has that power, but the explicit language in the order is required to make that intention clear.”

A Variation Order Cannot be Brought After a Payor’s Death

Given this prevailing Ontario authority, the Court concluded that the motion to change the support order brought after the payor’s death was “fatally flawed.” The motion’s judge was correct that a variation order cannot be brought after the death of the payor.  The payor’s estate was not bound to the terms of the support agreement granted pursuant to the Divorce Act as a payor’s obligations cease upon death unless the order provides otherwise.

The Court noted that this application was brought against the trustee of the payor’s estate because no legal proceeding can be brought against the deceased payor. Still, as there was no order binding estate, there was no subsisting order that could be varied to bind the trustee. 

Relief Under the Family Law Act May be Available

The Court further noted that the Appellant did not make a claim for alleged arrears of support that arose during the life of the payor and her application only sought to vary the 1978 child support order. Nothing in the Court’s reasons prevented the Appellant from seeking relief under the Family Law Act if such relief is available.

Contact Toronto Estate and Family Lawyers For All Your Estate and Family Matters

At NULaw, our experienced team of estate and family lawyers are always up to date on estate litigation cases and how they may impact our clients’ positions. We can assist in answering questions regarding your estate, including seeking child support obligations against an estate after the death of a payor. Contact us by phone at 416-481-5604 or reach us online to discuss your estate needs.  

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