BC Child Support Obligations After Death

Did you know that after a parent dies, his or her estate may be liable for outstanding? Does this allow for continued BC child support payments? That important principle was recently confirmed in Bouchard v. Bouchard, 2018 BCSC 1728, where Madam Justice Donegan set out the correct approach to get an order for BC child support after the death of the payor parent.

Does the Family Law Act Apply to BC Child Support After Death?

In the past, the common law governed this issue, and a payor’s BC child support obligation ended upon death unless, prior to death, the spouses had agreed or a court had ordered that child support obligations would continue after death.

The common law has now been changed by the Family Law Act, S.B.C. 2011, c. 25 [“FLA”]. It remains the case that the spouses can agree or a court may order that a payor’s BC child support obligation will continue after death and become a debt of the estate.

However, the FLA now also allows for a recipient of child support to apply to have that support continue as a debt against the deceased custodial parent’s estate, even if the original child support agreement or order was silent about support continuing after death.

Obligations in BC for Child Support After Death

The specific section of the FLA that applies is s. 171, which speaks to the situation where a payor who has a duty to pay child support under an agreement or order dies, but the agreement or order is silent about whether the support obligation binds his or her estate.

In that case, the recipient may apply under s. 171(3) for an order that the BC child support continues despite the death and binds the estate. If such an application is brought under s. 171(3), the court may be required to consider the factors outlined in s. 171(1).

These factors include whether there is a significant need, whether the estate is sufficient to meet the need after taking account of all claims of the estate, including those of creditors and beneficiaries, and whether no other practical means exist to meet the need.

Why the Claim in Bouchard v. Bouchard Failed

In Bouchard v. Bouchard, the parents of two children separated in 2012. That same year, the father received a $1.9 million personal injury award. The mother obtained interim orders for sole custody and guardianship of the children and monthly child support payable by the father.

In 2015, the father died without a will, leaving approximately $322,000 of his personal injury award in the trust account of the law firm that represented him in relation to that claim.

The mother applied for that amount held in trust to be paid directly to her as lump sum child support. No one, either on behalf of the children or any other eligible person, applied to administer the father’s intestate estate. Madam Justice Donegan dismissed the mother’s claim for the following reasons:

• The trust funds could only be seen as an asset of the father’s estate, and so procedurally, the mother’s claim was an improper attempt to obtain orders in the absence of any representation of the father’s intestate estate.The orders she sought could only be orders against his estate and no one had been appointed as a personal or litigation representative.
• The mother’s application improperly relied on s. 170(g) of the FLA, which sets out matters that may be provided for in BC child support orders. Section 170(g) permits a court to order that the payor’s support obligation will continue after his or her death and become a debt of his or her estate.To have the authority to order that BC child support will be binding on a payor’s estate if he or she were to die necessarily implies the payor is alive at the time of the order.In other words, s. 170 of the FLA is intended to be used when making orders while the parties are living. In Bouchard v. Bouchard, 170(g) was not referenced when the court made the interim support order prior to the father’s death.
• As there was a prior order for child support that was silent respecting whether the order continued and bound the estate, the mother should have brought her application under s. 171 of the FLA. In particular, s. 171(3) is the proper mechanism to apply for an order for the ongoing payment of BC child support upon the death of the payor spouse as a debt of the estate.

In dismissing the mother’s claim, Madam Justice Donegan also noted that any award for BC child support in the mother’s favor would only create a debt against the father’s estate; establishing a debt against the estate of a 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. For that reason, the administration of the father’s estate was critical.

In addition, circumventing the proper administration of the father’s estate failed to recognize or consider the legitimate direct interests of the children in an intestacy distribution. The children had a direct claim on their father’s net estate which needed to be considered.

FRA ss. 170 and 171 Pertain to Both Child and Spousal Support

While the focus of the Bouchard v. Bouchard case was BC child support, it is worth noting that the same FLA provisions apply to continuing spousal support obligations after the death of the payor spouse (for example, see Kumagai v. Campbell Estate, 2018 BCCA 24).

How to Apply for Child Support to Continue After Death?

To apply for child support to continue as a debt against the estate of a deceased parent in British Columbia, you would typically follow these steps:

1. Consult an Attorney

It’s advisable to consult with an attorney who specializes in family law or estate law. They can provide guidance on the legal process and help you navigate the complexities of your specific case.

Collect all relevant documents, including the original child support agreement or court order, proof of the parent’s death, and any other relevant financial documents related to the parent’s estate.

2. Determine Eligibility

Ensure that you meet the eligibility criteria for making such an application under the Family Law Act (FLA). Typically, you should be a recipient of child support payments or have a legitimate claim to child support.

3. File an Application

Your attorney will help you prepare and file an application with the court. The application should specify that you are seeking an order for child support to continue as a debt against the deceased parent’s estate.

Your application should include information about the financial circumstances of both parties, the needs of the child, and any other relevant factors mentioned in FLA section 171(1).

4. Court Proceedings

Attend court proceedings as required. The court will consider the application, review the evidence, and make a decision based on the circumstances and the applicable laws.

5. Estate Administration

If the court grants the application and orders child support to continue as a debt against the estate, the estate administrator or executor will need to consider this debt when distributing the assets of the estate.

It’s essential to seek legal advice and representation to ensure that your application is correctly filed, and you follow the appropriate legal procedures.

The court will ultimately decide whether child support should continue as a debt against the estate based on the facts and circumstances of your case.

What if There are Multiple Creditors and Beneficiaries in the Estate?

When there are multiple creditors and beneficiaries in the estate of a deceased parent, the priority of child support claims is determined by the laws of British Columbia.

Child support claims are generally considered a priority over many other claims against the estate.

The priority of claims in an estate typically follows a specific order:

• Funeral expenses and estate administration costs.
• Secured debts, such as mortgages.
• Unsecured debts, including credit card debt and personal loans.
• Child and spousal support arrears (child and spousal support are typically given higher priority).
• Legacies and bequests to beneficiaries, including specific gifts and inheritances.

It’s important to note that child support claims often rank ahead of many other debts and may be given a higher priority to ensure the financial well-being of the children involved.

The specific order of priority can vary depending on the circumstances and the available assets in the estate.

Estate administrators or family law executors are responsible for determining and adhering to these priorities when distributing the assets of the estate.

Summary of Child Support Obligations After Death

In the situation where a payor who has a duty of paying child 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/her estate, s. 171(3) of the FLA 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 s. 171(1).

To navigate this legal landscape successfully, it’s essential to understand the intricacies involved. If you find yourself in a situation where you believe child support should continue after the death of a parent, seek legal advice and understand your eligibility as well as your obligation to pay!

The Family Law Act has provided a framework that empowers recipients to seek continued support, but taking action with the guidance of legal professionals is key to achieving a favorable outcome. In this way, you can ensure that the financial support necessary for your child’s welfare is maintained, even after the passing of the paying parent.