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Tuesday, April 17, 2018

Can you get child support from an estate? And can an estate sue you for child support?

If you are paying or receiving child support, do you ever wonder what would happen to that obligation if you passed away? If you are the one paying, would your estate have to keep paying? A recent case in the Alberta Court of Queen's Bench has provided some confirmation of what will happen.

Whenever a case is decided by a court in Canada that touches on issues like this, we lawyers look at it to see whether it confirms what we're already doing, changes what we're doing, or clarifies some issue or outstanding question. Most of the time we hope for clarification of the facts or circumstances that will lead to a particular outcome. This is important so that we keep up with the current law but also so that we can give our clients some certainty as to the outcome of their own cases.

The bottom line with child support obligations is that it all comes down to the wording of the order or agreement that directs you to pay. If the agreement says that the support obligation continues on after you pass away, then it does. If the agreement does not say that it survives you, then the obligation to pay support dies with you.

The case mentioned above is that of Stalzer v. Stalzer. When Frank Stalzer died, he and his wife had been separated for about 10 years but had not divorced. The three children were living with Frank. His brother was named as the executor of Frank's will.

The executor brought an application to court asking for retroactive child support for all of the years that the children had lived with Frank. At the same time, Frank's wife brought an application against the estate for retroactive child support for the time the children lived with her. It's amazing how an argument can keep going even after one person has passed away, isn't it?

The judge denied both applications. He said that unless the order or agreement says otherwise, an obligation to pay child support is a personal obligation that ends when the person dies.

Also important is the fact that our Divorce Act (which applies right across the country) limits who may apply for child support. The applicant must be a spouse, not the estate of a spouse.

If you'd like to read the entire case, click here.

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