Simply put, support obligations end with the death of the payor.

The only exception is where the support order or the separation agreement provides that the obligation is binding on the estate.

As Justice Hutchison wrote in Despot:

"[T]he obligation to pay maintenance dies with the person obligated to pay it, unless of course there is a specific agreement or an order made during the lifetime of the person obligated to pay that it continue after death from his estate."

But as in almost every area of law, these simply rules seemingly accommodate a plethora of exceptions. Some courts state that they have jurisdiction to extend the arm of family law into the realm of estate law. Other judges look for a loophole in the separation agreement to achieve the same result.

In the result, the state of the law is confusing to the average Canadians. Because of this, it is not possible to give absolute legal advice and lawyers make money.

Arrears

The death of the payor may end the ongoing obligation to pay child or spousal maintenance but it does not erase arrears, which will remain due and payable and would normally be a debt that the executor or other personal representative would be required to pay out of the estate.

Post-Death Support

Some judges appear to suggest that they have the option of ordering that child or spousal support continues to be due and payable even after the death of the payor.

death and supportSuppose a wealthy but terminally-ill payor before a court and a fresh child support order being asked of the court. That can be tempting to an otherwise well-intentioned family court judge.

The best answer is: it can't be done.

Lord Denning wrote, in Sugden:

"The order is that the (payor) ... pay or cause to be paid to the wife the sum of £300 a year less tax for each child. It is to be noticed that it is only (the payor) who has to pay, not his personal representatives. It is an obligation which is personal to him and ends with his death. It only subsists during his lifetime. The father is to pay only so long as he is alive to pay ....

"I would like to add that, if it is desired to provide for maintenance for the children after the father’s death, the proper way is to order the father during his lifetime to make a secured provision for the children by putting aside a fund on their behalf.... In the absence of a secured provision, I doubt whether the Divorce Court has any jurisdiction to order a man’s personal representatives to pay maintenance for his children after his death. This is an additional reason for construing this order as I have done, so is to ensure that the Court does not go beyond it’s jurisdiction."

Essentially, a child support order that invades a payor's estate is an estate order, not a family law order.

It comes down to jurisdiction.

Once a potential payor dies, he (or she) can not be sued for child or spousal support. You can't start litigation against a dead defendant (see BC v Price).

In Black v Black, later endorsed by the Nova Scotia Court of Appeal in Carmichael, the court wrote:

"Legislation that empowers a Court to make an order which imposes an obligation on a man’s estate to pay periodic maintenance to his divorced spouse is, in my opinion, legislation relating to the succession to property and not legislation to marriage and divorce. If the Parliament of Canada intended to give to the Court power under the Divorce Act to make such orders as has been speculated upon then, in my opinion, the legislation is ultra vires of the Parliament of Canada to that extent. It is my opinion, however, that Parliament had no such intention."

But then, Ontario has led a foray into bad law.

In 1990, the Ontario Court of Appeal, in Linton v Linton, decided that a court setting a support order has "ample authority" to make it binding on the estate of the payor. That case relied on other, similar cases from Manitoba, Nova Scotia and Alberta.

Justice Osborne of the Ontario Court of Appeal wrote, in Linton:

"If the support order were not made binding on Mr. Linton’s estate, Mrs. Linton would be left without support, but with her needs intact, in the event of Mr. Linton’s premature death.

"In the context of a long-term traditional marriage of 24 years, Mrs. Linton had every reason to expect that she would be looked after in a financial way in the event Mr. Linton died before she did. In my view, in a traditional marriage, making a support order binding on the payor’s estate is consistent with ... the Divorce Act. It recognizes, in the particular circumstances, the economic disadvantages arising from the marriage and its breakdown."

In Brubacher, the Ontario court had no difficulty finding that a support obligation continued notwithstanding the death of the payor.

But even in British Columbia, home of Despot v Despot, the effect of Linton is felt. In Wilson, the British Columbia Supreme Court held that support obligations found in a separation agreement continued even after the payor died; it was payable by the estate!

Contract Loopholes

The courts, where otherwise inclined to extend support past the death of the payor, usually do so on the basis of some provision of the support order or the a separation agreement. They seek to read into the document an obligation that exempts the estate from the normal rule that support ends as of the death of the payor: instead, that it continues ever after.

Some of the cases where courts have read an post-death obligation to pay support have been supported by orders or contracts which refer to an obligation ending when the recipient "remarries", "lives with another man for 60 days or more" or where support is payable for a fixed term.

In Wilson, op.cit., the agreement had a clause which held that the terms of the agreement were binding on each's party's estate. That was enough for the court.

Many separation agreements also have waivers; that the parties waive any other right or entitlement either may have against the estate of the other. Again, judges have been found willing and able to leapfrog this, wink at good law and order ongoing support notwithstanding the waiver.

Wills Variation Statute

Almost every jurisdiction has a statute which allows a dependent child to attack and change as will which does not adequately provide for them.

This is the proper route a recipient of child support ought to embark upon if child support suddenly ends at the death of the payor, and the will has not recognized their need for ongoing support.

Of course, if the estate is insolvent, you can't get blood from a stone.

Conclusions

There are many exceptions to the general rule that support obligations end with the death of the payor. Support recipients and estate administrators alike can only rarely be certain of the response of a court to such a claim. This uncertainty encourages litigation as it leaves the average citizen without a reasonable expectation of what would happen if the matter went to court - other than the receipt of a handsome bill for legal services.

 

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