Until Death Do Us Part…and Beyond? Family Law – Part 1

There are many intersections between Family Law and Estate Law. Both areas of law are highly personal and in British Columbia both Family law and Estate law have undergone significant shifts as a result of the introductions of the Family Law Act and the Wills Estates and Succession Act . Estate Lawyers can find themselves dealing with family law issues when the former spouses of the recently Deceased advance continuing support claims. This issue was recently canvassed by the Supreme Court of British Columbia in the decision of Bouchard v. Bouchard,

2018 BCSC 1728 where the Honourable Madame Justice Donegan ruled on application by a former spouse of the Deceased who sought payment of lump sump child support. The Court noted:

[32]  After a parent dies, their estate may be liable for outstanding and continuing child support payments. The personal representative of the estate plays a role in determining whether the estate is liable for these things. This role is summarized in the British Columbia Probate and Estate Administration Practice Manual, 2nd Ed. (Vancouver: The Continuing Legal Education Society of B.C., 2007) (loose-leaf updated 2018), 11.27:

If the deceased was, immediately before death, liable for payment to an estranged spouse or child under a separation agreement or a court order, any arrears outstanding immediately before death will be a debt payable out of the estate. The personal representative will also have to determine whether the estate is liable for ongoing maintenance for the period     following death. If so, the estranged spouse or child will rank as an ordinary creditor of the estate for the future installments, and the personal representative will be obliged to provide for that claim before distribution to beneficiaries. Failure to do so will render the personal representative personally liable for devastavit (see §11.12).

[33] In the past, under the common law, a payor’s child support obligation ended upon death (see Milne v. MacDonald Estate, 1986 CanLII 931 (B.C.C.A.) and R.M.R. v. H.V., 2005 BCSC 52 at paras. 16-22), unless the parties reached an agreement or there was a court order specifying that the payor’s support obligations would continue beyond his or her death. If there was such an agreement or court order in existence at the time of death, these obligations could continue as a liability of the estate: Crain v. Crain, 1996 CarswellBC 1174 (S.C.) at   paras. 11-15.

[34] The common law I have just described has now been changed by the FLA. In the situation where a payor who has a duty to pay support    under an agreement or order dies and the agreement or order is silent about whether that duty continues after the payor’s death and is a debt of his/her estate, s. 171(3) of the FLA now allows the recipient of that support to apply for an order that the duty to pay support continues despite the death of the payor and is a debt of the estate, based on the factors in s. 171(1).

[43] To reiterate, under the old common law, unless the parties had agreed or a court had ordered that support obligations would continue after death, support obligations ended upon the payor’s death. Under the FLA, it remains the case that the parties can agree or a court can order that a payor’s support obligation continues after death and is a debt of the estate: s. 170(g); however, the legislation now allows for a recipient of support to apply to have that support continue as a debt against the payor’s estate, even if the original support agreement or order was silent about support continuing after death: s. 171(3).

In part II of this blog series we will discuss the ruling on this application.

If you are involved in Estate Litigation or have been wrongfully disinherited from a will, contact the Kushner Law Group today to schedule a consultation.




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