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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.

3 comments:

  1. A parent is obligated to provide for his or her surviving minor children. If a parent died but did not provide for the children within his/her will, there is valid grounds for the court to intervene so the children (and current spouse) will receive an appropriate portion of the deceased estate. I understand this is applicable in all provinces and territories.

    As child support seems to be mainly an obligation between ex-spouses, not the children directly, would the children then (through their guardian), need to seek remedy from the court for an appropriate provision from the estate if the deceased parent didn't provide for them?

    In the matter above, both the ex-spouse and estate were seeking retroactive child support. As I understand, the obligation is on each parent to ensure child support is paid when due, not after the fact.

    Please clarify if the surviving parent has any legal standing if there is an unfulfilled court order for unpaid child support against the deceased parent at the time of death?

    ReplyDelete
    Replies
    1. You are talking about two different things. Yes, a parent is obligated to support a minor child and failure to do so gives the minor a right to claim support. That support is called "dependent's relief" and is completely separate from any arrears arising from existing orders or agreements. This is an obligation from the parent to the child and not part of any obligation to the other parent.

      You ask for clarification on the issue of whether a surviving parent can request arrears of child support from the estate, but that is exactly what I already addressed in the original post.

      You are getting confused because you are mixing up dependent's relief (which only arises after death of the parent) with normal child support (which arises while the parent was alive).

      Lynne

      Delete
  2. The original post was in regard to 'new' requests for child support after the death of a parent whereas my question pertains to an established Court Order regarding support, issued prior to the death of either parent.

    From your reply, it appears existing child support orders would conclude on the death of a parent, but the child's guardian would then need to claim 'Dependant's Relief' on the child's behalf if the deceased parent's will did not specifically provide for the child. As such, assuming the deceased was the parent paying support, it seems there could be a substantial gap in time between the final child support payment, to when 'dependant relief' is granted and is finally received.

    Thank you for clarifying the differences in your first and final paragraphs. Although classified uniquely, both methods are intended to ensure adequate provision for ongoing care of a child, which is why clarification was requested.

    ReplyDelete

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