Disputes regarding children can be emotional and complex. When an order for child support is awarded, parties often only consider the obligation in the current circumstances. However, it is important for parents who receive child support payments to consider the financial consequences of what may happen if the support payor passes away. The payor’s obligation to pay support may end upon their death and the obligation may not continue to bind their estate; therefore, it is important for parties to be prepared for what happens next.
The case of Blacklock v. Tkacz Estate addressed whether retroactive child support could be claimed against a deceased payor’s estate. In this case, the parties separated in 1973. In the divorce proceedings, the applicant mother was to be paid child support payments of $20 per week per child.
In 2019 the applicant’s former husband died, and six months after his death, the applicant filed a Motion to Change seeking relief from the respondent, represented by the deceased’s estate trustee. The applicant sought retroactive expenses for costs incurred through paying for the university education of the parties’ two children, along with retroactive child support for the period that each child was eligible for support.
The mother alleged that the respondent failed to make financial disclosure that would enable the proper amount of support to be determined and that he abandoned his support obligations to his children. In turn, the respondent, representing the deceased father’s estate, argued that the mother could not bring the motion or claim for retroactive support against the former husband’s estate under the Divorce Act. Instead, the estate trustee suggested that a motion for summary dismissal was appropriate due to the inability of the mother to take proceedings against the estate over the 42-year-old support order.
The judge in this case identified a central question of law, namely, whether a support recipient can seek to amend an earlier support order after the death of the support payor, particularly in situations where the support order does not specifically provide that it is binding on the payor’s estate?
If the answer to this question is no, it would dispose of the mother’s motion. The estate argued that under section 17 of the Divorce Act, an application cannot be brought to vary a support order against a deceased’s estate where the original order does not specifically provide that the order also binds the estate.
In support of this, the estate pointed to the 2014 decision of the Ontario Court of Appeal in Katz v. Katz. In that case, the Court held that “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.”
The mother acknowledged the decision in Katz, but argued that three types of payment obligations can emerge from a support order, including ongoing support. The mother agreed that the ongoing support obligations ended upon the payor’s death, however, outstanding support arrears which accrued during the payor’s lifetime should not be discharged by the payor’s death.
In alleging that the support payor’s death does not eradicate pre-death unpaid debts, the mother relied on the British Columbia decision of Bouchard v. Bouchard. In this case, the judge accepted that after a parent dies, their estate may still be liable for outstanding child support payments. Further, if a deceased was liable for support payments before their death, outstanding arrears accrued during their lifetime could be paid out of the estate. A similar point was made in the Ontario Supreme Court decision in Hennings v. Hennings, where the judge accepted that accumulated support arrears under valid court orders constituted judgement debts.
Despite the mother’s reliance on various decisions, these cases did not specifically address the issue at hand, which was whether a child support order made under the federal Divorce Act was equally capable of being varied after the death of the payor as it would have been had the support payor been alive.
Looking further at Katz, the judge explained that no provision in the Divorce Act makes a support order binding on a payor’s estate. Instead, a support obligation under the Divorce Act ends when the payor dies, unless the court order specifically directs that the support payments will remain binding on the estate. In Katz, it was accepted that the courts have the authority to impose conditions before the payor’s death that support payments will be binding on the payor’s estate. However, the case law conflicts on this point.
In Blacklock v. Tkacz Estate, Justice Price wrote that after the payor’s death “the court is no longer dealing with “divorce”. It is now dealing with “property and civil rights”, a “matter” over which federal authorities have no jurisdiction.”
Justice Price looked at authorities which considered whether support recipients could apply to vary a court order to ensure it binds the payor’s estate. This was the subject of Schwartz Estate v. Schwartz, in which the judge accepted that the recipient mother was entitled to apply to the Court before the payor’s death to make the order binding on the payor father’s estate. However, the recipient did not do so, and the order expired on the payor’s death.
Ultimately, in Blacklock v. Tkacz Estate, the mother was unable to find any basis on which to vary the earlier order and receive additional support. As Justice Price put it, “how can a court amend, retroactively, an order that “died with the support payor?” The mother’s motion was flawed and was dismissed.
The compassionate family lawyers at NULaw in Toronto help clients navigate the uncertainties of family law. Whether you are dealing with a divorce, pursuing a claim for child support, or require post-divorce modifications, our lawyers are ready to help. We work with clients to ensure that they have the necessary information to make informed decisions affecting themselves and their children. To schedule a confidential consultation with a member of our family law team, call us at 416-481-5604 or contact us online.