Dead Beat Parents: More than one meaning when estate and family law meet

Vancouver family lawyers know that British Columbia parents must pay child support. Child support is the right of the child, not the parent. What if a parent dies? Does the parent continue to owe child support after they are dead?

In McLeod v. McLeod, 2013 BCCA 552, the BC Court of Appeal dealt with this very question. In that case, the father was required to pay $10,666 installments to the mother for a total of $1,280,000. Although the mother argued that it was not child support, the court determined that it was child support pursuant to s.15.1(5) of the Divorce Act. Because the amount was found to be child support, it was not an enforceable debt against the deceased father’s estate unless there was an express provision that it survived the father’s death.

Madam Justice Smith reviews a number of principles which may be gathered from trial level decisions with respect to enforcing spousal support against the estate of the payor at paragraph 25:

[25] There are a number of trial level decisions that have also addressed the issue of when spousal support might continue after the death of the payor. The principles from those decisions may be summarized as follows:

(a) support terminates on the death of the payor absent an agreement or order specifying continuation of the payments after death;

(b) If the agreement or order provides for a fixed term of support, the estate is bound by that agreement;

(c) A “fixed term” evincing an intention for support to continue after the payor’s death includes a provision for support “for her lifetimeâ” or “until she remarries”; and

(d) An intention for support to continue after the payor’s death can be found in a term relinquishing all claims against the payor’s estate except to enforce obligations under the agreement. [citations omitted]

Entitlement to spousal support may be either due to need, contract or as compensation for a spouse’s role during a relationship. Child support is different from spousal support because entitlement does not come from any of those things. Entitlement is automatic and entitlement belongs to the child.

With respect to child support, in the case of Dutkowski v. Dutkowski, 2007 BCSC 1558, Justice Ross found at paragraph 9:

[9] The following principles appear to be well settled:

(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. [citations omitted]

In British Columbia, the Wills Estates and Succession Act [SBC 2009] c.13 provides that children of a deceased may apply under s. 60 to vary a parent’s will if the will does not make adequate provision for their proper maintenance and support (formerly this right was under the Wills Variation Act).

After reviewing Dutkowski, and considering that a child would have a course of action through the (then) Wills Variation Act, Madam Justice Smith finds at paragraph 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 to those intentions where it would be in the best interests of the child(ren) to do so.”

The decision in McLeod was made in December 2013, approximately 9 months following the coming into force of the Family Law Act, [SBC 2011] c. 25. Sections 170(g) and 171 of that act deal with enforcing support orders after a parent or spouse’s death.

170. In an order respecting child support or spousal support, the court may provide for one or more of the following:

(g) subject to s.171(1), that a duty to pay child support or spousal support continues after the death of the person having the duty, and is a debt of his or her estate for the period fixed by the court.

171. (1) Before making an order under s.170 (g), the court must consider all of the following factors:

(a) That the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;

(b) That the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all clams of the estate, including those of creditors and beneficiaries;

(2) If an agreement, or an order under s.170 (g), is made and the person having a duty to pay child support or spousal support dies, the person’s personal representative may make an application, and the court may make an order, to

(a) set aside or replace with an order made under this Part all or part of the agreement, or

(b) change, suspend or terminate the order.

(3) If, as a result of giving priority to a duty to pay child support, a court is unable to make an order respecting spousal support or makes an order respecting spousal support in an amount that is less than it otherwise would have been,

(a) the court must give reasons for doing so, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under s. 165 or 167, as applicable.

(4) Section 164 does not apply to making of an order under this section.

Under these sections, it is possible for a court to make an order that child or spousal support be payable by someone’s estate. It is important to note that these sections are under the Family Law Act and as a result would not be applicable to applications for support under the Divorce Act.

If you have questions about exercising your child’s right to support against a deceased’s spouse and whether you may be able to take advantage of sections 170(g) and 171 of the Family Law Act, feel free to contact us for more information and a free 1 hour consultation.