This case outlines the importance of including a provision in a support Order which clearly states that the Order also binds the estate of the deceased.

Background

This case around of the Appellant’s motion against the respondent estate of her deceased husband for retroactive child support. The deceased had unfortunately passed away on March 14, 2019 and the Applicant brought her Motion to Change on October 4, 2019.

The parties were married in 1969, separated in 1973, and were divorced in 1978. The Divorce Order required the deceased to pay $20.00 of child support per week for each of the parties’ two children. However, the Divorce Order did not explicitly state that the child support obligation would be binding on the deceased’s estate in the event that he passed away. The children completed their respective post-secondary education programs, and as such no longer qualified as children of the marriage, in 1997 and 1998.

The Appellant was claiming $275,000.00 in retroactive child support against the deceased’s estate. The motion judge relied upon Rule 16(12)(a) of the Family Law Rules which permitted the court to decide a question of law prior to trial if determination o that question could dispose of all or part of the case. In doing so, the motion judge dismissed the motion by relying on section 17 of the Divorce Act which states that an applicant cannot claim or vary a support order against the estate of a payor if the original support order is silent on whether the order binds the estate of the payor. The Appellant then appealed the motion judge’s decision.

Analysis

In dismissed the Appellant’s appeal, the court made it clear that support orders under the Divorce Act do not automatically bind a payor’s estate. The court used this reasoning to conclude that since there was no Order which bound the deceased’s estate, there was no Order for the court to vary now to bind the estate. However, the court did offer the Appellant an alternative route.

First, the court noted that in her Motion to Change the Appellant did not make a claim for any alleged arrears of support that accrued throughout the life of the payor. As such, the court suggested that she may be able to still issue a new Application against the estate of the deceased claiming arrears of child support which accumulated during the life of the payor even though the children ceased being children of the marriage almost 30 years prior. However, this position the court took is interesting in light of the Supreme Court of Canada decision in Michel v Graydon which states that delay in claiming retroactive support still matters despite expanding the scope for claiming retroactive child support for children who have ceased to be children of the marriage.

Conclusion

The Court of Appeal dismissed the Appellant’s appeal and upheld the motion judge’s decision that an application under s. 17(1) of the Divorce Act to retroactively change child support cannot be brought after the payor has passed away.

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