Child support doesn’t necessarily stop when the parent who pays it passes away in British Columbia. Under section 171 of the Family Law Act, a parent who receives support may apply for an order that the support continues as a debt of the deceased parent’s estate. The court may grant that order only after it weighs the recipient’s significant need, the size of the estate, and whether any other practical means exist to meet that need.
At Onyx Law Group, our lawyers handle family law and estate matters across British Columbia, including claims where child support and a deceased parent’s estate meet. If a parent has died and support payments have stopped, contact our team to talk through what your options are.
This article explains how section 171 works, why the mother’s claim in Bouchard v. Bouchard failed, and how a support recipient can apply.
Does the Family Law Act Apply to BC Child Support After Death?
Before the Family Law Act, the common law handled this matter. A payor’s child support obligation ended at death unless the parents had agreed otherwise or a court had already ordered that it continue. Madam Justice Donegan cited Milne v. MacDonald Estate from the Court of Appeal for that older rule.
The Family Law Act, enacted SBC 2011, c 25, changed it. Spouses can still agree, and a court can still order, that a payor’s support obligation survives death and becomes a debt of the estate. The new thing about the law is that recipients can now ask a court to continue support if there is no mention of death in the original agreement or order.
In these situations, the estate of the parent who pays is what matters most. A moral obligation to a child may be clear, but the legal obligation to keep paying child support after death depends on an agreement, an order, or a successful application under the act.
How Does Section 171 Handle Child Support Obligations After Death?
The rule is located in section 171. It applies when a parent who has a duty to pay child support under an agreement or order dies, and the agreement or order does not specify whether that duty continues after death. The recipient may then apply under section 171(3) for an order that the duty to pay continues despite the death and is a debt of the estate for the period fixed by the court.
Before ordering anything, the court must consider three factors set out in section 171(1). The person who receives support must have an important need for continued support that is likely to last after the payer has died. The estate must be sufficient to meet that need after all claims, including those of creditors and beneficiaries. And there is no other practical way to meet that need.
The act deals with orders made during the lifetime of the payer. Under section 170, a court making child support orders can pick a limited period or a specified event, order a lump sum, or require the payor to name a child as the beneficiary of a life insurance contract with an insurance company so that life insurance benefits are available later. If an agreement or order already addresses death and the payor dies, section 171(2) allows the personal representative to ask the court to set it aside, change, suspend, or end it, which is how child support modification can arise after a death.
Why the Claim in Bouchard v. Bouchard Failed
Sandra and Maurice Bouchard had two children, both still minors, and separated in 2012. That same year, the father won about $1.9 million after a trial and an appeal for injuries sustained in an auto accident that happened in 2005. The father died without a will on October 15, 2015. After the father’s death, about $322,000 of the award was still in the trust account of his personal injury law firm, according to the BC Supreme Court’s reasons in Bouchard v. Bouchard, 2018 BCSC 1728.
These figures come from a published court decision, not from a result achieved by Onyx Law Group. Past results, including those described in court decisions, do not guarantee a similar outcome in any other case.
The mother had interim orders for sole custody and guardianship of the minor children and for monthly child support. She requested that funds be paid to her as a lump sum for child support. The father’s estate had no personal representative because he died without a will and nobody had applied to administer it. Madam Justice Donegan, sitting in the BC Supreme Court, dismissed the application.
The first problem was procedural in nature. The trust funds could only be treated as an asset of the father’s estate, and any order the mother wanted could only run against that estate. Without representation either personally or as a litigation representative, her claim sought an order where there was no one speaking on behalf of the estate.
The second problem was the section she relied on. Under law, Section 170(g) allows courts to make orders for support that continue after his or her death, assuming that at the time the order is given, the person making payments (the paying parent) is still alive. Because the earlier interim order was silent about death, the mother should have applied under section 171(3). The court pointed out that interpreting 170 in the way she suggested would make 171 (3) superfluous.
The third issue dealt with matters related to estate debts. Even an award would only create a debt against the father’s estate, and a debt does not entitle a litigant to be paid directly. The personal representative still has to weigh it against other claims. Omitting that step overlooked the children’s interest in how the intestate distribution would affect them, as they had a direct inheritance claim on their father.
Do Sections 170 and 171 Also Apply to Spousal Support?
Bouchard was about child support, but sections 170 and 171 cover spousal support as well. The Court of Appeal applied them in Kumagai v. Campbell Estate, 2018 BCCA 24. An interim spousal support order of $5,000 a month was made against Mr. Campbell; the order was silent about his death, and he died eight days later.
On reconsideration, the trial judge held that the support could continue as a debt of the deceased’s estate, and the Court of Appeal agreed that the legislature had clearly changed the common law. The trial judge also used Federal Child Support Guidelines and Spousal Support Advisory Guidelines to determine the amount. Anyone with a support order, whether for a child or a former spouse, should check what it says about death, because a recipient trying to collect child support from an estate starts with that wording.
How Do You Apply for Child Support to Continue After Death?
When a parent who pays child support dies, the support does not always stop, but it does not continue on its own either. In British Columbia, the Family Law Act lets the court make an order that child support continues against the payor’s estate, and the person receiving support has to ask for it. Because the estate may be distributed to beneficiaries while a claim sits unfiled, it helps to understand the process early. The application usually moves through five stages, from speaking with a lawyer who handles both family and estate matters to completing the estate administration once the court has ruled.
Consult a Family and Estate Lawyer
First, speak with a lawyer who deals with family law and estate matters together because those claims sit in both categories. Bring the child support agreement or court order, proof of the parent’s death, and whatever records exist for the estate, including bank accounts and other assets, and any sign that the parent was still paying child support before death. Your lawyer will also want to know if someone has been named to administer the estate because that turns out to be very important according to Bouchard.
Confirm Who May Apply
Then please verify who may apply. Section 171(3) speaks to the person receiving support under an agreement or order, so the first check is whether such a document exists and what it says about death. If the agreement or order already provides that support continues after death, then the next question is how to collect on that obligation from the estate. If it is silent, the section 171(3) application is the route.
File an Application
Then your lawyer prepares an application under section 149 as section 171(3)(a) directs, asking that the support continue as a debt of the estate. It should include details about the children’s needs, financial situations for both parents, and the likely size of the estate, and also address the three factors in section 171(1). If the estate has no personal representative, the court may, on application, appoint a litigation representative under the Supreme Court Family Rules.
Attend the Court Hearing
At the hearing, the court looks at need, assets of the estate, and other alternatives. In other circumstances, the facts may point the other way, and the period it fixes for continued support is part of the order. Children may also have a separate claim, because a court can vary a will under Part 4 of the Wills, Estates and Succession Act, and that process has its own time limits.
Complete the Estate Administration
Finally, if the court orders support to continue, the personal representative must provide for that debt before distributing to beneficiaries. The practice manual quoted in Bouchard warns that a representative who fails to do so can be personally liable. That is why the order and the administration of the estate need to move together.
What If There Are Multiple Creditors and Beneficiaries in the Estate?
When there are multiple creditors and beneficiaries in an estate, child support claims are among many others as well. The BC Probate and Estate Administration Practice Manual, quoted in Bouchard, says support arrears outstanding at death are a debt payable from the estate. Where the estate is liable for ongoing support, the recipient ranks as an ordinary creditor for future child support, and the personal representative must provide for it before distributing to beneficiaries.
Support does not automatically jump the queue. The Family Law Act itself tells the court to measure the estate against all claims, including those of creditors and beneficiaries. There are different rules for insolvent estates as well as for the Wills, Estates and Succession Act; therefore, a lawyer should check where a specific claim fits in.
The personal representative is responsible for working through those claims when dividing an estate.
Ready to Talk to a BC Lawyer About Child Support After Death?
When a paying parent dies, and the agreement or order is silent about death, section 171(3) of the Family Law Act lets the recipient ask the court to continue support as a debt of the estate. The court considers important needs along with the estate’s resources left after paying off other claims and whether there are other ways of handling things practically. Because the claim runs through the estate, speaking with a lawyer early is the sensible first step.
Our family and estate lawyers at our Vancouver and New Westminster offices handle support claims that arise from deaths for parents and executors. We start by reviewing the current arrangement or contract, the assets that are part of this estate, and the person named as administrator. Contact us today for a consultation.
Frequently Asked Questions
Our lawyers who handle families and estates get asked these questions by parents, guardians, and executors all over Metro Vancouver. These answers rely on the current Family Law Act and decisions discussed earlier. Every file has its own specific information; therefore, treat each one as general information.
Does Child Support Stop When the Paying Parent Dies in BC?
The legal responsibility for parents who are supposed to pay support payments varies depending on either an agreement they’ve made or an order that has been issued. If the contract or order states that support continues after someone’s death, that support obligation becomes part of the estate, and any money owed for unpaid bills at death also counts as part of the estate.
Who Can Apply for Child Support to Continue After a Parent Dies?
The person receiving support under the agreement or order may apply under section 171(3). If an agreement or order already deals with death, the payor’s personal representative may apply under section 171(2) to set it aside, change, suspend, or end it.
Can the Court Order a Lump Sum or Life Insurance to Cover Support?
When it makes a support order, a British Columbia court can order a lump sum or require the payor to name a child as beneficiary of a life insurance contract. After a death, as Bouchard shows, a lump sum cannot be taken directly from the estate’s assets, since the claim has to go through the estate’s personal representative.
What Happens If the Parent Who Dies Is the One with Whom the Children Live?
Section 171 specifically addresses cases where the person paying support has died; therefore, it does not address this particular question. If the custodial parent dies, the surviving parent and other family members may need to decide quickly who will care for the children, and a lawyer can advise on guardianship and any existing support order. The Family Law Act speaks of guardianship and parenting arrangements rather than custody, although older orders still use the word, and a child’s parent in that position should get advice before acting.
Disclaimer: The information on this page contains general legal information about British Columbia law, but it does not provide specific legal advice for any specific situation. Reading this page does not establish a lawyer-client relationship, and contacting Onyx Law Group does not create one. Changes in BC laws and procedures, and the facts of each family and estate, will affect how child support is treated after a parent’s death. If you need advice about your specific situation, you should speak directly to a qualified British Columbia family or estate lawyer.