Appellant can seek available relief under Family Law Act, appellate court notes
A court has dismissed an appeal seeking retroactive child support against a deceased ex-spouse’s estate. No legal proceeding could be brought, given that there was no order binding the deceased payor’s estate and no subsisting order that could be varied to bind the estate.
In Blacklock v. Tkacz, 2021 ONCA 630, the appellant and her former husband married in 1969, had two children born in 1970 and in 1972 and separated in 1973.
In 1978, an Ontario Court, in a proceeding under the Divorce Act, granted the appellant a decree nisi which gave her custody of the two children of the marriage and ordered her former spouse to pay weekly child support of $20 for each child, but which did not state that this obligation would be binding on the former spouse’s estate.
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The former husband died in March 2019. In October 2019, the appellant filed a motion against the trustee of her deceased ex-husband’s estate, seeking retroactive child support payments for their two children. The motion, initiated under the Divorce Act, asked the court to make certain changes to the support obligations.
The motion judge dismissed the appellant’s motion, relying upon rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99, which allowed the court to decide a question of law before trial if determining this question may dispose of all or part of the case, and relying upon the judgement in Katz v. Katz, 2014 ONCA 606.
The motion judge held that, under s. 17 of the Divorce Act, one cannot bring an application to claim or to vary a support order against a decedent’s estate if the original order is silent on the matter of whether the order binds the estate.
The Court of Appeal for Ontario dismissed the appeal and ruled that the motion judge correctly determined that the appellant could not bring an application under s. 17(1) to retroactively change child support after the payor’s death.
The appellate court cited the Katz case that held that the Divorce Act has no provision similar to s. 34(4) of the Family Law Act, R.S.O. 1990, c. F.3, which provides that a support order binds the estate of the individual with the support obligation.
The appellate court noted that the appellant could choose to make a claim for alleged arrears of support that arose during the payor’s lifetime or to seek available relief under the Family Law Act.