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| Jason Moore |
A common Ontario practice is to obtain FLA court orders directing one spouse to obtain life insurance with an irrevocable designation naming the spouse as the beneficiary. Given the court’s authority under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA), can those support orders be challenged by other dependents?
The above questions underscore the complexity of the interplay between family and estate law. Let’s delve into some of the details.
Family Law Act
Sections 30 and 31 of the FLA specifically obligate spouses and parents to support each other and their children, to the extent that they are capable. Applications for support can be brought under s. 33 thereof.
With respect to deceased debtor spouses, under s. 34(4) of the FLA, “an order for support binds the estate of the person having the support obligation unless the order provides otherwise.” Interestingly, there is no such parallel provision in the Divorce Act. Equally surprising, s. 8(3) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 states that the Family Responsibility Office (the FRO) does not enforce support orders against the estate of a deceased payor. That sort of sounds like a mixed message. So, what exactly is supposed to happen when the payor spouse dies?
Divorce Act
Similar to the FLA and SLRA, a spouse may apply to a “court of competent jurisdiction” for spousal or dependant support under s. 15.2 of the Divorce Act. A parent may also apply for child support under s. 15.1 of the Divorce Act. Where applications for spousal and child support are brought at the same time, priority is given to the application for child support (s. 15.3).
Unlike the FLA and the SLRA, which are both Ontario statutes, the Divorce Act is a federal statute. An order made for support under s. 17 therefore has legal effect throughout Canada pursuant to s. 19.1(3), and can be enforced in other provinces. But what happens after the payor’s death? Is the estate obliged to continue paying support pursuant to an order under the Divorce Act, given the absence of a statutory provision specifically stating that a support order survives the death of the payor?
Succession Law Reform Act
Part V of the SLRA concerns support for dependents. This includes a spouse, parent, child or sibling of the deceased “... to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” (SLRA at s. 57(1)) As the Supreme Court observed in Tataryn v. Tataryn Estate, [1994] 2 SCR 807, at paragraph 29:
A person is under a legal duty to support his or her spouse and minor children. If this duty is not observed then it may be enforced through the courts. That a testator's estate should, therefore, be charged with a duty similar to that borne by the testator in his lifetime is not troublesome.
To enforce these obligations, s. 77(1) of the SLRA provides as follows:
77 (1) An order or direction made under this Part may be enforced against the estate of the deceased in the same way and by the same means as any other judgment or order of the court against the estate may be enforced.
Section 72(1) of the SLRA permits a wide variety of assets owned or disposed of by the deceased before their death to be included for the purposes of meeting dependant support obligations and can be enforced against by the creditor. These include proceeds of life insurance policies. But how will courts treat competing claims to those insurance proceeds if the surviving spouse was irrevocably designated as a beneficiary as part of an FLA support order?
The complex interplay of family law, divorces, and death requires expertise in different specialty practices. For those dealing with these issues a lunch and learn seminar on the topic of enforcing domestic contracts and support orders will feature Craig Vander Zee and Meaghan O’Connor of Torkin Manes LLP on June 4, 2024, starting at 12:00 p.m. This seminar is an opportunity for new and experienced estate and family lawyers to learn about this rapidly evolving area of family law and estate litigation. For more information and to register, please click here.
Jason Moore is a lawyer at Wagner Sidlofsky LLP, practicing in the estate and commercial litigation groups.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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