VANCOUVER SPOUSAL AND CHILD SUPPORT AFTER DEATH

Call us at 604 602 9000 to ensure you are protected in this complex area as support may or may not end on death depending on the agreement or court order made.

The British Columbia Court of Appeal (the “Court”) recently released its judgment in McLeod v. McLeod, 2013 BCCA 552 (“McLeod”), clearly stating  that child or spousal support is a personal obligation which ends upon the payor’s death unless there is an agreement or an order that provides expressly otherwise under the Divorce Act (the “DA”). Our new Family Law Act has its own special clauses for support binding the paying spouse’s estate on death.

The McLeod case explains that Vancouver child and spousal support under the DA is a personal obligation, how death can result in variation of a support order,  how death of a Vancouver spouse or parent affects Vancouver support in arrears, and what  circumstances  relate to the  granting of security for a support obligation, and how death affects support under  s.170(g) of BC’s new family law legislation, the Family Law Act (the “FLA”).

Does The Support Payor Have To Keep Paying Support After They Are Dead?

McLeod involved a mother applying for an order that a special provision for child support in a consent order pursuant to s. 15.1(5) of the DA, payable in monthly instalments, be enforced against the estate of the payor father who died before the instalment payments were completed. The chambers judge dismissed the application, concluding that the special provision was child support and absent an express provision to the contrary that it did not survive the payor’s death and therefore was not enforceable against the payor’s estate. The Court upheld the chambers judge’s decision.

After the Court summarized various cases regarding the continuation of support obligation after the payor deceased, it held at para. 28 that a court must consider the intention of the parties as it may be reflected in their agreement or in a court order, and, in the case of child support, give effect of those intentions where it would be in the best interests of the child(ren) to do so.

Child And Spousal Support As A Personal Obligation

The BC Appeal Court, approved the case of Dutkowski v. Dutkowski, 2007 BCSC 1558, in which Madam Justice Ross summarized the principles regarding the issue of whether an obligation to pay child support continues after the death of the payor:

(a) the obligation to pay maintenance is personal and does not extend past the date of the death of the payor in the absence of an agreement or an order that binds the estate; and

(b) any application to vary the terms of an order to specify that it is binding upon the estate of the payor must be brought during the payor’s lifetime.

The above-mentioned maintenance is either child or spousal support.

One or both spouses may apply for an order that a spouse pay both child and spousal support. However, priority is given to child support over spousal if both forms of support are sought and the proposed payor cannot pay both (s.15.3 of the DA). Child support is a pre-existing right and legal costs to obtain an order for such support are tax deductible. Spousal support, however, is a personal right which the applicant spouse has to establish based on his/her condition, means, needs and other circumstances (s.15.2(4) of the DA.

Variation of a Support Order Must Occur Before Death

Current decisions have established that an application for support or variation of an existing support order cannot be brought after the payor’s death, McLeod at para. 22.

Support Arrears

Although a support obligation extinguishes after the payor’s death under the DA, arrears arising from the support obligation constitutes a judgment debt against payor’s estate unless it is canceled by the court through application by payor’s personal representative. An important factor for the court to consider on an application to cancel arrears is whether the deceased payee depleted his/her estate because the payor did not pay that support. In Hampton, the arrears were cancelled because there was no material to indicate why no steps were taken by the support recipient to enforce the support order.

When Will The Court Grant Security For A Support Obligation

The provisions of the DA include provisions that have been utilized to order a child or spousal support order to survive the death of a payor. In particular, ss. 15.1(4) and 15.2(3) respectively provide that a court may impose “terms, conditions or restrictions in connection with the [support] order … as it thinks fit and just”. Section 17(3) provides that “[t]he court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.” The following is a list of what circumstances may warrant security being ordered:

1. where the obligor has a history of dissipating assets;
2. where the obligor is likely to leave the jurisdiction and become an absconding debtor;
3. where the obligor has refused to honor a court-ordered or consensual support obligation or has refused to provide support at all;
4. where the obligor has a poor employment history or threatens to leave his employment;
5. where the obligor has an extravagant lifestyle and was uncooperative with the payee in the past;
6. where the obligor is outside the jurisdiction at the time of the hearing but has assets within the jurisdiction that are capable of forming a basis for security; and
7. where the obligor has declared that she will refuse to pay any eventual support.

Notwithstanding that the court can impress a support obligation with security, the case law has not firmly established the court has the jurisdiction under the DA to order support binding on the payor’s estate.

New Rules For BC Estate Support Under s.170(g) of the Family Law Act

BC’s new legislation, the Family Law Act, has expressly provided authority to the BC court to secure a support obligation against the payor’s estate under s.170(g). This is another reason that married couples should always seek orders under both the DA and the FLA.

Further, s.171(1) sets out all the factors the court must consider before making an order, either an original order or a variation order.

s.171(2) allows the payor’s personal representative to apply to vary or terminate the support order.

s.171(3) allows the payee to apply to continue the payor’s support obligation despite his/her death on consideration of the factors set out in s.171(1) when an agreement or an order is silence on whether the support obligation shall continue after the payor’s death.

The competing claims of beneficiaries and former spouse’s and children are affected by this complex area of law. Orders and Agreements need to properly deal with this issue to ensure there are no nasty surprises. Our top rated lawyers are familiar with this evolving area of the law.