The Intersection of Family and Estate Issues – Does an estate have to pay retroactive child support?

November 22, 2021 Natalia R. Angelini Litigation Tags: , 0 Comments

In the recent decision of Blacklock v. Tkacz, the issue before the Court of Appeal was the appeal of a motion seeking retroactive child support payments against the estate of an ex-husband who was alleged to be in arrears to the tune of almost $300,000.00.

The couple married in 1969, and divorced in 1978. The Decree Nisi ordered the deceased ex-husband to pay child support in the amount of $20.00 per week for each of his two children. Importantly, the Decree Nisi did not state that the support obligation was binding on the deceased’s estate.

The child support payments were not made. More than 40 years later, after the ex-husband’s death in 2019, the appellant brought an application to vary the 1978 Decree Nisi as against the deceased’s estate.

The motion judge determined that, under section 17 of the Divorce Act, an application cannot be brought to claim support against a deceased’s estate if the original order is silent on whether it binds the estate. The motion judge also relied upon  Katz v. Katz, where the court notes the distinction between the Divorce Act and the Family Law Act on this issue:

[72]: “There is, however, no provision in the Divorce Act similar to s. 34(4) of the Family Law Act, making a support order binding on a payor’s estate. On the contrary, 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 Court of Appeal agreed, and reasoned that there was no existing order that could be varied to bind the estate. It further determined that the motion judge correctly decided that the application to retroactively change child support could not be brought after the death of the payor. The appeal was dismissed.

Thanks for reading and have a good day,

Natalia Angelini

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