The question of whether a family law support order or a divorce support order is binding on a deceased spouse’s estate is an interesting one that bears close consideration during the estate planning process. If not properly addressed, disputes regarding support obligations can lead to estate litigation if such matters are not completely considered and understood in advance of an individual’s passing. Further, including specific clauses and/or limitations regarding whether support obligations are binding on an individual’s estate in divorce agreements can potentially reduce the complexities of settling an estate.
In a recent decision, the Ontario Court of Appeal (“ONCA”) reviewed and upheld a lower court’s decision dismissing an application by a woman who sought retroactive child support against an ex-spouse’s estate.
The fact pattern in Blacklock v. Tkacz (“Blacklock Decision”), 2021 ONCA 630, is fairly straightforward. The former spouses, Ulna Blacklock and Theodosius Tkacz, had married in 1969 and separated four years later in 1973. In 1978, as part of a proceeding under the Divorce Act, granted Ms. Blacklock a Decree Nisi. The Decree Nisi, which is essentially an initial declaration of the court granting the parties a divorce, granted the appellant, Ms. Blacklock, custody of the two children of the marriage and ordered Mr. Tkacz to pay $20 of child support per week for each child.
Mr. Tkasz passed away in March of 2019. Ms. Blacklock brought her application in October of 2019. That application, which was filed solely under the Divorce Act, sought “by Motion to Change a lump sum payment of at least $275,000.00 for retroactive adult child support and child support”. In the alternative, the motion sought “by Motion to Change, periodic monthly child support in accordance with the 2011 Child Support Guidelines” for at least $194,670.20 in principle and pre-judgment interest.
The children of the marriage between the spouses were born in 1970 and 1972, Both ceased to be children when they completed their post-secondary education by the summer of 1998. There was no indication that either of the children required ongoing support due to a disability.
Can motions be dismissed without trial if answering a question of law can dispose of all or part of a case?
Justice Timothy Price of the Ontario Superior Court of Justice dismissed Ms. Blacklock’s motion without setting the matter for trial. In doing so, Justice Price resorted to rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99, which allows the court to decide a question of law before trial if deciding the question may dispose of all or part of the case.
In his decision, Justice Price ruled that “an application cannot be brought to claim or vary a support order against a decedent’s estate if the original order is silent on whether that order binds the estate”.
As the Decree Nesi did not specify that the support order would be binding on the estate of Mr. Tkacz, Justice Price considered the matter before him a straightforward question of law.
A support obligation under divorce legislation only binds an estate if there is a specific agreement
Justice Price relied on a 2014 Ontario Court of Appeal decision, Katz v. Katz 2014 ONCA 606, where the ONCA confirmed that “[I]t 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”.
In upholding Justice Price’s decision, the ONCA also observed that the Divorce Act does not contain a provision similar to s. 34(4) of the Family Law Act, R.S.O. 1990, c. F.3, which stipulates that an order for support binds the estate of the person having the support obligation.
Though Ms. Blacklock filed the application only under the Divorce Act, the application was in fact brought against the trustee of her former husband’s estate because no legal proceeding could be brought against the deceased husband directly.
The ONCA confirmed in its ruling that, since there was “no order binding the estate, there was no subsisting order that could be varied to bind the estate”.
In Katz, the ONCA confirmed that a support order under the Family Law Act is binding on a payor spouse’s estate unless the order provides otherwise.
Adding to the importance of understanding support obligations when planning one’s estate, that court further held that because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation.
As the Katz and Blacklock cases demonstrate, the intersection of family law legislation, divorce legislation, and estate legislation can often result in unforeseen complications and difficulties in settling an estate. Understanding your support obligations and addressing such obligations in your will can help your family settle your estate without unnecessary conflict. In fact, if you are involved in divorce proceedings, you would be well advised to consult an estate lawyer to fully understand your rights, responsibilities and obligations and whether these would be binding on your estate.
Contact Toronto Estate Lawyers at Derfel Estate Law for help with understanding the impact of divorce or family support obligations in the event of payor’s passing
At Derfel Estate Law, our experienced team of estate lawyers are always up to date on estate litigation cases and can assist in contesting a will. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.