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Reminder Out of Ontario Regarding Child Support Obligations and the Payor’s Estate
Recently, a case from the Ontario Court of Appeal addressed if one can make a claim against a payor for retroactive child support, against the estate of that payor if they have deceased. In this case, Blacklock v Tkacz from 2021, the appellant was seeking an award for retroactive child support payments against her deceased husband’s estate. The application was being brought under the Divorce Act, specifically in seeking a lump sum payment amount for the retroactive child support.
The Justices in Blacklock v Tkacz, held that the motion judge at the lower level of court was correct in dismissing the appellants application to have retroactive child support ordered against the deceased payor’s estate. The court ruled that under section 17 of the Divorce Act, “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.” The earlier Ontario Court of Appeal case of Katz v Katz from 2014 was cited for this precedent. This is a fresh reminder that if using the Divorce Act, if the originating order or agreement for child support payments is silent on the issue of if the payor’s estate is bound by such terms, the payor’s estate cannot be held liable when the payor passes away, for any outstanding child support obligations.
In Alberta, orders or agreements for child support payments will fall under the federal Divorce Act or under Alberta’s Family Law Act, depending on the status and legal relationship between the mother and father. Blacklock v Tkacz reminds that if using the Divorce Act for child support, that the estate of the payor needs to be specifically addressed in the order or agreement, if in the future the payee wishes to have the ability to pursue that estate for retroactive child support. Even if using Alberta’s Family Law Act instead of the Divorce Act, the Family Law Act specially states in section 80.1(1)(b), that in seeking a support obligation where the payor has deceased, the legislation allowing such action only applies if “the support order or support agreement binds the estate of the person having the support obligation.”
In summary, Blacklock v Tkacz is a recent reminder that child support orders or agreements, must mention that the order or agreement is bound by the estate of the payor, if in fact the payee wishes to pursue that payor’s estate regarding child support obligations.