In a recent Ontario Court of Appeal decision, the court ruled that a wife could not sue her deceased husband’s estate for retroactive child support.
Court Orders Husband to Pay Child Support in 1978
A husband and wife were married in 1969 and separated in 1973. They had two children: a son born in 1970 and a daughter born in 1972.
A 1978 court order awarded the wife custody of the two children. The court also ordered the husband to pay the wife child support in the amount of $20 per week per child.
Wife Sues Husband’s Estate for Retroactive Child Support
The husband died on March 14, 2019.
Six months after his death, the wife filed a motion to change child support with the court. She named the husband’s estate’s executor and trustee, as named in his will, as the respondent to her motion.
In the motion, the wife sought payment for the costs of the children’s education, a lump sum of $275,000 for retroactive adult child support and child support or, in the alternative, the amount of approximately $194,670 in retroactive periodic child support in accordance with the Federal Child Support Guidelines.
In support of her claim, the wife alleged that the husband had failed to make proper financial disclosure. She also claimed that she had not made the motion previously because she feared the husband. Finally, she claimed that the husband had completely abandoned his support obligations towards the children and had essentially abandoned them.
Deceased Husband’s Estate Responds to Motion
In response, the husband’s estate trustee asked that the child support ordered in 1978 be terminated as of the date on which the children ceased being children of the marriage or, in other words, had become adults.
Additionally, the estate trustee claimed that the wife and two children had wilfully estranged themselves from the husband following the divorce so that he had no knowledge of their activity or educational costs.
The estate trustee further submitted that there had been no “material change in circumstances” that would justify a change to the 1978 order. He further argued that the husband had lacked the means to pay or contribute to the children’s educational costs.
Additionally, the estate trustee submitted that the court was without jurisdiction to vary the 1978 court order and that the husband had not failed to make proper financial disclosure.
The estate trustee further alleged that the wife had made no effort to communicate with the husband about any failure to pay child support prior to his death, thus affording him the right to claim a defence of laches. Finally, the estate trustee argued that the wife’s alleged fear of the husband did not justify a 41-year delay in seeking to enforce the 1978 support order.
Lower Court Dismisses Wife’s Motion on Child Support
The motion judge rejected the wife’s motion, ruling that under s. 17 of the Divorce Act, an application cannot be brought to claim or vary a support order against a deceased’s estate if the original order was silent on whether that order bound the estate. The judge relied on a 2014 Ontario Court of Appeal decision, Katz v. Katz, that set out the following holding:
“[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.”
The wife appealed the motion judge’s decision to the Court of Appeal.
Court of Appeal Dismisses Wife’s Appeal on Child Support
The Court of Appeal succinctly dismissed the wife’s appeal, concluding:
“We do not accept the [wife]’s submission that [the Katz] statement does not apply because the application related strictly to the payor’s lifetime on a retroactive basis. As the court in Katz observed, the Divorce Act does not contain a provision similar to s. 34(4) of the Family Law Act, which stipulates that an order for support binds the estate of the person having the support obligation. Yet, this application was brought against the trustee of the payor’s estate, as it had to be because no legal proceeding could be brought against the deceased payor. As there was no order binding the estate, there was no subsisting order that could be varied to bind the estate. The [wife] did not make a claim for alleged arrears of support that arose during the life of the payor, as she might still, her application sought only an application to vary the 1978 order. Nor does anything in these reasons prevent her from seeking relief under the Family Law Act, if available.”
As such, the court held that the motion judge had correctly decided that an application under s. 17(1) of the Divorce Act to retroactively change child support could not be brought after the death of the payor and dismissed the appeal. It further awarded costs against the wife in the amount of $3,000.
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