Did you know that after a parent dies, his or her estate may be liable for outstanding and continuing 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.
Family Law Act applies to BC child support
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 can 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 payor’s estate, even if the original child support agreement or order was silent about support continuing after death.
BC child support obligations 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 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 is required to consider the factors outlined in s. 171(1). These factors include whether there is 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 FLAis 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 favour 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, 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 on 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 death of the payor spouse (for example, see Kumagai v. Campbell Estate, 2018 BCCA 24).
The take home point on BC child support obligations after death
In the situation where a payor who 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/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).