Bouchard v Bouchard 2018 BCSC 1728 dismissed an application for lump sum child maintenance for monies held in the estate of the deceased to died intestate, but reviewed the law relating to continuing obligations to pay spousal or child maintenance after death and the impact of the recently newish Family Law act allowing for same.
The deceased had been awarded approximately $1.9 million in a serious motor vehicle accident but became drug addicted and spent much of the estate.
Arrears of child maintenance in the amount of $300 per month had accumulated, and the mother on behalf of the infant children of the deceased, brought a court application that monies held in trust by the personal injury lawyers be paid to her as a lump sum child maintenance.
The court declined for largely procedural reasons including the children likely or the soul intestate heirs and their rights needed to be protected.
The court noted that any award for child support would only be a debt as against the deceased’s estate, and establishing a debt against the estate of the deceased person does not entitle a litigant to a court order for the amount of the debt. Debts against an estate must still be considered in terms of priority by the executor or estate administrator, as the case may be. This is one of the reasons why administration of the deceased’s estate is critical.
In the past, under the common law, of payor’s child support obligation ended upon death, Milne v MacDonald Estate 1986 CanLii 931 (BCCA) that unless the parties reached an agreement or there was a court order specifying that the payors support obligations would continue beyond his or her death. If there is such an agreement or court order in existence at the time of death, his obligations could continue as a liability of the estate Crain v Crain 1996 Carswell BC 1174 (BCSC) at paragraphs 11 – 15
The common law has now been changed by the Family Law act that where a payor 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 or her estate, Section 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 sections 171 (1)
This recent change in the FLA was allowed in Kumagai v Campbell Estate 2016BC SC 1161 where the act for a court stated that section 171 (3) FLA must be interpreted in a manner consistent with the legislature’s intention to provide a mechanism for the ongoing payment of support upon the death of the payee or spouse.
As a result, the claimant was not precluded by the wording of section 1713) from applying for an order that the deceased spousal support obligation continues despite his death and becomes a debt of his estate.
The court specifically found that the legislative intent of these provisions was to provide a mechanism for the ongoing payment of spousal and child support upon the death of the payee or spouse based on the factors listed in section 171 (1) . The legislature has clearly and expressly change the common-law principles with respect to support under the FLA
The factors set out in section 171 ( 1) entitle support obligations after death in FLA are:
171 (1) before making an order under section 170 (g) for an order after death that a duty to pay child support or spousal support continues after death, the court must consider it all of the following factors:
a) That the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;
b) that the estate of the person paying child support or spousal support is sufficient to meet the needs referred to in paragraph a after taking into account all claims on the estate, including those of creditors and beneficiary;
c) that no other practical means exist to meet the need referred to in paragraph a
2. If an agreement, or an order under section 170g) is made in the person having a duty to pay child support or spousal support dies, the person’s personal representative may make an application, and the court may make an order, to:
a) Set aside or replace with an order made under this part all or part of the agreement, or
b) change, suspend or terminate the order.
3. If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate,
a) The person receiving support may make an application under section 149 relating to children or 165 relating to spouses and
b) if, on consideration of the factors set out in subsection 1 of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and as a debt of his or her estate for the period fixed by the court.