COURT FILE NO.: FC232/19
DATE: 2021/01/25
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Ulana Blacklock, formerly Olga Tkacz, Applicant
AND:
Theodosius Tkacz, deceased, by his Estate Trustee, Joel Ross Huber, Respondent
BEFORE: T. PRICE J.
COUNSEL: Mervin L. Riddell - Counsel for the Applicant
William R. Clayton - Counsel for the Respondent
HEARD: November 27, 2020
ENDORSEMENT
Background
[1] Olga and Theodosius Tkacz were married on May 3, 1969. They separated on or around May 1, 1973.
[2] On July 25, 1978, Judge Joseph P. McMahon, sitting as a Local Judge of the Supreme Court of Ontario, granted a Decree Nisi in a divorce proceeding commenced by Olga. Under its terms, Olga was granted custody of the two children of the marriage, Peter, born February 2, 1970 and Tanya, born March 8, 1972.
[3] The Decree Nisi required the Respondent to pay the Petitioner child support “in the sum of $20 per week per child.” The order was later made absolute, without change.
[4] Theodosius Tkacz died on March 14, 2019. Olga Tkacz is now known as a Ulana Blacklock.
[5] On October 4, 2019, just over six months after the death of Theodosius Tkacz, Ulana Blacklock (hereinafter referred to as “the Applicant”) filed a Motion to Change in the Superior Court of Justice, Family Court at St. Thomas.
[6] The Respondent to the Motion to Change is identified as “Theodosius Tkacz, deceased, by” the Executor and Trustee named in [his] last will and testament (hereinafter referred to as “the Respondent”).
[7] The Motion to Change seeks the following relief:
That the Respondent pay the sum of $20,865 to the Applicant for Theodosius Tkacz’s share of the expenses incurred by the Applicant paying for the University educations of Peter and Tanya retroactively to the time that the costs were paid by the Applicant; and
that the Respondent pay a lump sum of “at least $275,000 for retroactive adult child support and child support” for Peter and Tanya for the period that each was eligible for child support; or
in the alternative, that the Respondent pay retroactive periodic child support, monthly, in accordance with the 2011 Federal Child Support Guidelines. The Applicant estimates this amount to be at least $194,670.20; plus
pre-judgment and post-judgment interest on all amounts determined to be owing.
[8] The retroactive periods for which such claims are made are as follows:
for Peter, from May 1, 1973 (the date of Olga and Theodosius Tkacz’s separation) until April 1997, when he allegedly completed his post-secondary education; and
for Tanya, from May 1, 1973 (the date of Olga and Theodosius Tkacz’s separation) until June 1998, when she allegedly completed her post-secondary education.
[9] Accordingly, the period for which retroactive child support and adult child support is claimed for Peter is 24 years, and for Tanya is 25 years, with the periods of retroactivity having ended 22½ and 21½ years before the commencement of the Motion to Change, respectively.
[10] In her Change Information Form, the Applicant offered the following reasons for seeking the orders:
that Theodosius Tkacz failed to make financial disclosure in order that “a proper amount of child support and adult child support could be determined and granted”; and
that the Applicant feared both Theodosius Tkacz and “the disruption, further emotional and mental abuse and stress he would cause to the said children and adult children and to [the Applicant] if change or variation had been sought at any earlier time.”
[11] The Applicant further alleged that Theodosius Tkacz had “completely abandoned his support obligations in favour of his own pursuits to the detriment of his children and wrongfully abandoned his children and their support.”
[12] In his Response to the Motion to Change, the Respondent requested that the child support provisions of the July 25, 1978 order of Judge McMahon be terminated for each of Peter and Tanya on the dates that the court determines that each ceased to be a child of the marriage.
[13] The Respondent raised a number of other defences, including:
the Applicant and the two children had wilfully estranged themselves from Theodosius Tkacz following the divorce, intentionally keeping him uninformed and unaware of their activities, which included the particulars of their post-secondary educational pursuits and associated costs;
that the children, once adults, willingly removed Theodosius Tkacz from their lives and kept in touch only occasionally by means of greeting cards sent to him;
that no “material change in circumstances” had occurred after the order of July 25, 1978, other than the enactment of the Federal Child Support Guidelines, effective May 1, 1997;
that Theodosius Tkacz lacked the means and circumstances to pay or contribute to the post-secondary educational costs of the children when they were allegedly being incurred;
that the court is “without jurisdiction” to address support in the period between May 1973 and July 25, 1978 because the order of Judge McMahon is “presumptively correct”;
that the order dated July 25, 1978 makes no provision for the payment of pre-judgment or post-judgment interest;
that there was no legal requirement before the enactment of the Federal Child Support Guidelines on May 1, 1997 for Theodosius Tkacz to provide ongoing financial disclosure; thereafter, any such obligation only applied with respect to Tanya, if she continued to be a child of the marriage on that date;
that the Applicant made no effort to communicate with Theodosius Tkacz about his alleged failure to pay any child support between 1978 and the date of his death, thereby affording the Respondent the right to claim a defence of laches against the Applicant; and
that the Applicant’s allegation that she feared Theodosius Tkacz did not justify a 41-year delay in originally seeking to enforce the support order of July 25, 1978.
Procedural History
[14] The parties appeared before me for a case conference on August 19, 2020. At that time, I was informed that the Respondent would be bringing a motion to dismiss the Applicant’s claim. No particulars were provided at that time. The motion was scheduled on consent for October 16, 2020. Timelines were set for the filing of materials.
[15] The Respondent then brought a motion seeking a “final order dismissing the Applicant’s Motion to Change, with full indemnity costs to the Respondent.”
[16] The affidavit filed in support of the motion essentially recited the same facts as were set out in the Response to Motion to Change and relied on the same legal bases for rejecting the claims of the Applicant.
[17] The Applicant brought a cross-motion seeking an order under Family Law Rule 1(8)(c) that the Response to Motion to Change be struck due to the failure of Theodosius Tkacz, during his lifetime, and thereafter, through the Respondent, to obey the child support provisions of the divorce order dated July 25, 1978. On the assumption that such an order would be granted, ancillary relief is requested, including financial disclosure pertaining to Theodosius Tkacz from a number of third parties “for purposes of an uncontested trial or otherwise.”
[18] The Applicant also sought an order “directing the Respondent to disclose to the Applicant the claimed grounds being relied upon by the Respondent for his said Motion.”
[19] In support of the Applicant’s cross-motion, her counsel filed affidavits from Peter Tkacz and the Applicant. They addressed the family history and the underlying claims made by the Applicant. A series of exhibits were appended to the Applicant’s affidavit. They consisted of correspondence directed to the Respondent by Peter and Tanya; university transcripts; records of payments to post-secondary educational institutions; income tax information pertaining to Theodosius Tkacz covering the years 1973 through 2018; income tax information pertaining to the Applicant; the tables to the Federal Child Support Guidelines; the Applicant’s calculations of the amounts claimed by her; and interest rates over the period for which such claims are advanced.
[20] In response, the Respondent sought to strike several paragraphs from each of the affidavits, and some of the exhibits appended to that of the Applicant.
[21] In his factum dated October 9, 2020, the Respondent articulated, for the first time, the defence that the Applicant cannot bring a Motion to Change against the estate of Theodosius Tkacz under section 17 of the Divorce Act, including a claim for retroactive child support, because the child support order of Justice McMahon dated July 25, 1978 did not contain a provision “stating in clear language that the support obligation is binding on the estate of the support payor.”
[22] The Applicant’s factum is also dated October 9, 2020. It included the following statement: “The issues to be raised by the Respondent executor remain undisclosed by him. The following is rendered in support of [the Applicant’s] proceeding and motion and in an effort to anticipate as to what may be the Respondent’s position, reserving the right to require procedural fairness in due course herein.”
[23] It is clear that, when writing his factum, counsel for the Applicant was still unclear as to the basis on which the Respondent would be seeking to have the Application dismissed so early in the proceeding.
[24] The parties appeared before Justice Campbell on October 16, 2020. The motions did not proceed. Justice Campbell granted leave to the Applicant to file an amended factum which, presumably, was a result of counsel for the Applicant’s need to respond to the Respondent’s newly raised defence.
[25] As a result, counsel for the Applicant filed a supplementary factum dated November 4, 2020 in which he responded to the new defence.
[26] When the parties appeared before me on November 27, 2020, I asked their counsel about the nature of the Respondent’s motion. I did so because the Respondent’s Notice of Motion requested a result (dismissal of the Application), without specifying the means by which that result might be achieved.
[27] In his factum dated October 9, 2020, counsel for the Respondent wrote that “a motion for summary dismissal under Rule 16 of the Family Law Rules is entirely appropriate as the clear inability of the Applicant to take proceedings against the [estate of Theodosius Tkacz] in connection with the 42-year-old support order does not require a trial.”
[28] Family Law Rule 16 contains two primary avenues for the termination of a proceeding short of a trial.
[29] The first is a summary judgment motion, which requires that both parties place before the court, for assessment, evidence which will allow the court to determine whether or not there exists a “genuine issue requiring a trial of a claim or defence.”
[30] Certain subsidiary procedures are also subsumed in the summary judgment motion. For example, sub-rule 16(8) provides that, “[i]f the only genuine issue” requiring a trial “is a question of law, the court shall decide the issue and make a final order accordingly.”
[31] As I read sub-rule16(8), the court is first required to examine and consider all of the issues that are raised by the evidence. Having done so, if there is no other genuine issue, beyond a question of law, which requires a trial, the court must then decide the issue raised by the question of law, after which it must make a final order.
[32] This case raises a number of legal issues. They include:
whether a support payee can seek to vary, retrospectively, a divorce judgment requiring the payment of child support after the death of the support payor;
if the answer to #1 is yes, whether the support payee can bring such a claim after the children are no longer “children of the marriage” as defined by the Divorce Act;
whether it is appropriate to apply the child support payment amounts contained in the tables appended to the Federal Child Support Guidelines to periods prior to their enactment during which child support was payable;
if the answer to #3 is no, defining the process for determining child support in the pre-Guideline period, including a consideration of the continued applicability of the procedure outlined in Paras v. Paras, 1970 370 (ON CA), [1971] 1 O.R. 130;
whether, prior to the enactment of the Child Support Guidelines, a support payor had the same obligations with respect to income disclosure as now exist;
whether, prior to the enactment of the Child Support Guidelines, a support payor had an enforceable obligation to contribute to the type of expenses now described in section 7, particularly post-secondary education costs and, if so, how that obligation was defined;
if the answer to #6 is yes, whether the supported children have a corollary obligation to contribute to the payment of their post-secondary expenses and, if so, the extent of their obligation;
if the answer to #6 is yes, whether the failure of the support payee to discuss the expenses for which contribution is being sought affects, in any way, the obligation of the support payor;
if the answer to #6 is yes, whether a breakdown in the relationship between the child and the support payor has any affect on the obligation of the support payor;
the extent to which the factors set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 apply in the circumstances of this case, and particularly, whether a delay of approximately 42 years on the part of the support payee in seeking redress is such as to override absolutely any factor operating in favour of the payee;
how the Applicant might prove her allegation of unpaid past child support, given s.13 of the Evidence Act, R.S.O. 1990, c. E.23;
whether interest can be applied retrospectively to an unpaid child support order, whether as originally constituted or as varied; and
whether the Response to Motion to Change filed by the Respondent ought to be struck pursuant to Family Law Rule 1(8)(c) on the basis that, while alive, Theodosius Tkacz, and, after his death, the Respondent failed to comply with the support order of Justice McMahon.
[33] Before the motion began, I asked counsel if they had considered the provisions of Family Law Rule 16(12). Neither responded in the affirmative.
[34] Family Law Rule 16(12)(a) provides that: “The court may, on motion, decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs.”
[35] As I read Family Law Rule 16(12)(a), if either party determines that a pre-trial decision on just a question of law might “dispose of all or part of the case, substantially shorten the trial or save substantial costs” the court may decide the question of law before trial.
[36] It also would appear that the “question of law” need not raise a “genuine issue requiring a trial” for resolution, since the phrase “genuine issue”, found in sub-rule 16(8), is absent from sub-rule 16(12)(a).
[37] Thus, it appears to me that, if its preliminary conditions are met, Family Law Rule 16(12)(a) removes the requirement of a summary judgment motion that the court examine all other issues to determine whether there is a “genuine issue requiring a trial”. The focus is solely on the question of law, the answer to which may dispose of or shorten the case or trial or save costs.
[38] The question of law raised by the Respondent is whether, after the death of a support payor, a support payee can seek to amend, pursuant to s. 17 of the Divorce Act, a support order previously made thereunder which does not specifically provide that it is binding on the support payor’s estate.
[39] If the answer to the question is “no”, it seems to me that such a conclusion will “dispose of all or part of the case”, meaning the Applicant’s motion to change. Thus, I conclude that the beneficial effects that could result from a successful sub-rule 16(12(a) motion are in place.
[40] In his Notice of Motion, the Respondent requested “a final order dismissing the Applicant’s motion to change with full indemnity costs to the Respondent.”
[41] I interpret that prayer for relief as being cast broadly enough to allow me to decide the question of law raised by the Respondent in his factum under sub-rule 16(12(a).
[42] Rule 16(13) provides that, “on a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.”
[43] By the time this matter was heard, the parties had already filed their evidence.
[44] The facts which must be in evidence before me to found jurisdiction, based on the pleadings, the evidence and, indeed, agreement of counsel, are few.
On July 25, 1978, in a divorce proceeding, Justice McMahon made a child support order in favour of the Applicant against Theodosius Tkacz;
The child support order did not include any language which made the support payments binding on the estate of Theodosius Tkacz;
Theodosius Tkacz died on March 14, 2019; and
On October 4, 2019, the Applicant brought a motion seeking a “retroactive change of a prior Order [for] Divorce as to child support.”
[45] If I conclude that my decision on this question of law will not “dispose of all or part of the case, substantially shorten the trial or save substantial costs”, I will then consider the Respondent’s motion as one for summary judgment and review the entirety of the evidence to determine if there are one or more genuine issues requiring a trial for resolution.
The Respondent’s Position
[46] The Respondent submits that the absence of a clearly articulated provision in the divorce order of July 25, 1978 that its child support obligations would be binding on the estate on Theodosius Tkacz is “fatal” to the Applicant’s motion to change.
[47] The Respondent relies primarily upon the Court of Appeal decision in Katz v. Katz, 2014 ONCA 606 in support of this submission.
[48] In that decision, the Court of Appeal wrote, at para. 72 that:
“… it has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary…”
The Applicant’s Position
[49] The Applicant responded to the Respondent’s motion with a multi-faceted defence, the essence of which lies in her counsel’s submission that there are three types of payment obligations which arise from a support order imposed under the Divorce Act in a case where the support payor later dies:
“ongoing or “continued’” support, which counsel agrees ends with the death of the support payor unless there is an express provision making it binding on the support payor’s estate;
pre-death support which is “outstanding”, “ such as arrears that may have accrued during the payor’s lifetime” which are not absolved or discharged by the death of the support payor; and
“retroactive increases in the quantum of child support for the pre-death period.”
[50] Counsel asserts that the third type of payment obligation, which forms the focus of the Applicant’s defence to the motion seeking to dismiss the motion to change, is “an existing, enforceable (by payee) debt and liability of the estate.”
Analysis
[51] Counsel for the Applicant sought to distinguish Katz v. Katz and limit the effect of the Court of Appeal’s assertion at 2014 ONCA 606, para. 72 that, absent a specific agreement to the contrary, “a support or maintenance obligation under divorce legislation ends when the payor dies”, by pointing out that the assertion was made “in the context of whether or not a divorce court can require the support payor to provide insurance under a Divorce Act order for support obligations accruing due in the post-death period.”
[52] In my view, the comments of the Court of Appeal cannot be so lightly disregarded as on the basis suggested by counsel for the Applicant.
[53] While the observation by counsel for the Applicant is factually correct, it ignores the Court of Appeal’s statement that it “propose[d] to address the issue” of “a court making an order requiring a spouse to obtain life insurance” under the Divorce Act “for jurisprudential reasons.”
[54] Counsel for the Applicant further submitted that:
the Court of Appeal decision in Katz v. Katz does not stand for the proposition that “a proceeding cannot be brought, post-death, against an executor, absent special wording in the child support order”, and
“if any restriction exists, it does not affect the child support obligation that arose prior to the payor’s death.”
[55] By his latter submission, counsel for the Applicant is focusing on the second and third types of payment obligations, supra, at para. 49, which, he claims, arise from a support order imposed under the Divorce Act in a case where the support payor later dies.
[56] To the extent that, by these statements, counsel for the Applicant was asserting that the death of a support payor does not eradicate pre-death, unpaid debts arising from the non-payment of support, he draws support for his assertion from the following comments made by Justice Donegan of the Supreme Court of British Columbia in the case of Bouchard v. Bouchard, [2018] BCSC 1728 at para. 32:
32 After a parent dies, their estate may be liable for outstanding…child support payments. The personal representative of the estate plays a role in determining whether the estate is liable for these things. This role is summarized in the British Columbia Probate and Estate Administration Practice Manual, 2nd Ed. (Vancouver: The Continuing Legal Education Society of B.C., 2007) (loose-leaf updated 2018), sec.11.27:
If the deceased was, immediately before death, liable for payment to an estranged spouse or child under a separation agreement or a court order, any arrears outstanding immediately before death will be a debt payable out of the estate. The personal representative will also have to determine whether the estate is liable for ongoing maintenance for the period following death. If so, the estranged spouse or child will rank as an ordinary creditor of the estate for the future installments, and the personal representative will be obliged to provide for that claim before distribution to beneficiaries. Failure to do so will render the personal representative personally liable for devastavit (see sec.11.12).
[57] The same point was made in Ontario by Justice Shaughnessy in Hennings v. Hennings, [1999] O.J. No. 1740 at para. 23, where he wrote:
23 Turning to the issues in this proceeding, I find that subject to the court’s overriding jurisdiction to vary, support arrears constitute a valid judgment debt…. In Hampton v. Hampton, (1985), 1985 505 (BC CA), 46 R.F.L. (2d) 113 at 120, the British Columbia Court of Appeal has stated:
"Those accumulated arrears are judgment debts arising under valid Orders, made within the jurisdiction of the court…." [^1]
[58] The issue on this motion, however, is whether the death of a support payor leaves in existence a child support order, made pursuant to the Divorce Act, which is as capable of being varied as it would have been had the support payor been alive when the motion to change was brought.
[59] In order to arrive at an answer to that issue, I must more closely examine the cases relied upon by, first the Respondent and, secondly, the Applicant.
[60] Katz v. Katz was an enforcement case. The Appellant had brought two motions to enforce the Respondent’s obligations under their divorce order to:
firstly, contribute to expenses under section 7 of the Federal Child Support Guidelines and,
secondly, obtain a $500,000 life insurance policy and designate the children as beneficiaries.
[61] The Respondent claimed, on appeal, that he had taken all reasonable steps to secure the insurance policy but had been unable to do so because no insurer would provide coverage.
[62] The Appellant requested an order allowing her to obtain the required life insurance and to collect the premiums from the Respondent as if they were child support.
[63] The Court of Appeal declined to permit the Appellant to obtain the insurance, noting, at paragraph 64 that, “the order requested by the Appellant would require a change order.”
[64] The Court of Appeal concluded that, because of her proposal, the Appellant was, effectively, acknowledging that the Respondent could not comply with the order that was made with respect to the obtaining of insurance. It held that the “proper course is to move to change the existing order.”
[65] To that point, the decision would seem to support the position of the Applicant in this case – that a change order can be obtained.
[66] However, the Court of Appeal elected to continue its endorsement, addressing “for jurisprudential reasons” the question of “the propriety of a court making an order requiring a spouse to obtain life insurance” which the Respondent had raised during the appeal.
[67] I take that to mean that the Court of Appeal was informing trial and motions judges of its view of how the law should be interpreted with respect to the securing of support payments through the obtaining of insurance.
[68] It is in this ensuing review that one finds the statements relied upon by the Respondent in support of its position on this motion, where the Court of Appeal wrote:
68 Under s. 34(4) of the Family Law Act, "[a]n order for support binds the estate of the person having the support obligation unless the order provides otherwise."
70 Because a support payor's estate is bound by a support order following the payor's death, the court making a support order is entitled to secure the payments to be made in the event of the payor's death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation: see Laczko v. Laczko (1999), 1999 14998 (ON SC), 176 D.L.R. (4th) 507 (Ont. S.C.), at pp. 511-12.
71 The situation under the Divorce Act is somewhat different. There is no provision similar to s. 34(1) of the Family Law Act listing the specific powers of the court in an application for support. Rather, the court is given broad discretion to impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just: ss. 15.1(4) (child support), 15.2(3) (spousal support). It is generally accepted that as part of its discretionary power under these sections, a court may impose terms aimed at securing payment of a support order: see Trinidad v. Trinidad (2007), 2007 52985 (ON SC), 47 R.F.L. (6th) 128 (Ont. S.C.), at para. 97; Jardine-Vissers v. Vissers, 2011 NSSC 195, 303 N.S.R. (2d) 200, at para. 44. With respect to a child support order made under the Divorce Act, s. 12 of the Federal Child Support Guidelines gives a court express authority to order a spouse to supply security.
72 There is, however, no provision in the Divorce Act similar to s. 34(4) of the Family Law Act, making a support order binding on a payor's estate. On the contrary, it has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary: Schwartz Estate v. Schwartz (1998), 1998 29650 (ON SC), 36 R.F.L. (4th) 110 (Ont. Gen. Div.), at paras. 23, 27 and 28. There are conflicting authorities across Canada concerning whether a court may order that support payments under divorce legislation are binding on the payor's estate: see e.g., Carmichael v. Carmichael (1992), 1992 2496 (NS CA), 43 R.F.L. (3d) 145 (N.S.C.A.), at paras. 17, 27; Will v. Thauberger Estate (1991), 1991 7685 (SK QB), 34 R.F.L. (3d) 432 (Sask. Q.B.), at para. 14, varied on other grounds, 1991 8004 (SK CA), 38 R.F.L. (3d) 68 (Sask. C.A.). Nonetheless, the prevailing view in Ontario has long been that the court has that power, but that explicit language in the order is required to make that intention clear: Schwartz, supra; Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.), at p. 32. [bolding added]
[69] The Court of Appeal noted that the resolution by Ontario courts of the issue of whether a divorce order might contain a clause securing post-death payments of support is not uniformly applied across Canada. Absent the resolution applied by courts in Ontario – “explicit language in the order” making clear the intention that it binds the payor’s estate, one is left with “conflicting authorities across Canada” on this issue.
[70] An example of one such conflicting authority is Carmichael v. Carmichael, 1992 8496 (NS SC), [1992] N.S.J. No. 377, which also provides an explanation for the conflict in the authorities noted by the Ontario Court of Appeal.
[71] Carmichael v. Carmichael involved an appeal where the support payor had been ordered to pay child support in the amount of $3,500 per month. The divorce order also provided that the payments would be binding on the payor’s estate. On appeal, the payor sought to remove the obligation that it be binding on his estate.
[72] The Nova Scotia Court of Appeal held that the trial court did not have authority to impose an obligation on the payor’s estate to continue the maintenance payments after his death, as a matter of constitutional law.
[73] In its decision, the Nova Scotia Court of Appeal acknowledged that, “arrears of maintenance payable prior to the death of the spouse are a debt payable during his or her lifetime, of course, and debts of the deceased are recoverable against the estate.”[^2]
[74] However, as to the authority of the court to impose a condition that a support payment is binding upon a support payor’s estate, the court wrote:
“This court has never recognized the jurisdiction to make such orders under the Divorce Act, nor the constitutional jurisdiction of Parliament to make such a provision. In the present case, I am not satisfied that an order binding the estate could be justified even if it could be validly made….
The clearest statement in Nova Scotia on the power to bind the estates of husbands and fathers with orders for the payment of periodic maintenance is Black v. Black (1981), 1981 2794 (NS SC), 46 N.S.R. (2d) 361 (T.D.). In that case Hallett, J., as he then was, conducted a constitutional analysis and concluded:
"In my opinion, this court does not have the jurisdiction on the granting of a divorce to order periodic maintenance to be payable by the estate of the payor in the event he predeceases the payee."
Mr. Justice Hallett stated at p. 369:
"The Provinces are authorized under section 92 of the British North America Act to make laws relating to property and civil rights. Legislation that empowers a court to make an order which imposes an obligation on a man's estate to pay periodic maintenance to his divorced spouse is, in my opinion, legislation relating to the succession to property and not legislation relating to marriage and divorce.
If the Parliament of Canada intended to give to the court power under the Divorce Act to make such orders as has been speculated upon, then, in my opinion, the legislation is ultra vires of the Parliament of Canada to that extent. It is my opinion, however, that Parliament had no such intention." [Bolding added]
Such an intention could have been easily expressed; a mere oversight by Parliament cannot be assumed. Instead, the Divorce Act is conspicuously silent as to the effect of the death of a payor spouse. I agree with Hallett J. that Parliament must be presumed to have intended to limit the jurisdiction of the courts. The constitutional issue arising from the division of powers between ss. 91 and 92 of the Constitution Act, 1867, provides a sound reason for it having done so.
I have been referred to no statements of Canadian law contradicting Black v. Black. However, there have been a number of cases expressing doubt, or a lack of certainty, that the Divorce Act provides jurisdiction to bind an estate, notably Public Trustee of British Columbia (Price Estate) v. Price (1990), 1990 705 (BC CA), 25 R.F.L. (3d) 113 (B.C.C.A.) and three from this court, Connelly v. Connelly (1974), 1974 1319 (NS CA), 9 N.S.R. (2d) 48 (C.A.), Hemming v. Hemming (1983), 58 N.S.R. (2d) 157 (A.D.), leave to appeal to Supreme Court of Canada refused (1983), 1983 2821 (NS SC), 57 N.S.R. (2d) 346 [^3] (sic) and Donald v. Donald (1991), 1991 2563 (NS CA), 103 N.S.R. (2d) 322.
I would adopt the reasoning of Hallett J. in Black v. Black and set aside the provision in the corollary relief order purporting to bind Dr. Carmichael's estate.
[75] As I read both Katz v. Katz and Carmichael v. Carmichael, I conclude that the “conflict” that exists between these “authorities” is over the question of whether, before the death of a person who is required to pay support under a divorce order, a court can affix a condition that the support obligation will continue after the support payor’s death.
[76] However, I also interpret both Katz v. Katz and Carmichael v. Carmichael as coming to the same conclusion about the effect of a divorce order after a support payor’s death. At that point, the “conflict” in the authorities ends. Under either formulation of the power of the court granting the divorce with respect to how long support might be payable, the court is no longer dealing with “divorce”. It is now dealing with “property and civil rights”, a “matter” over which federal authorities have no jurisdiction.
[77] In my view, the Ontario Court of Appeal tacitly admitted as much when, in Katz v. Katz, it wrote that, absent an express provision to the contrary in the order then existent, “it has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies.”
[78] In reaching its conclusion in Katz v. Katz about “the prevailing view in Ontario”, the Court of Appeal cited two earlier cases: Schwartz Estate v. Schwartz (1998), 1998 29650 (ON SC), 36 R.F.L. (4th) 110 (Ont. Gen. Div.), at paras. 23, 27 and 28 and Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.), at p. 32.
[79] Linton v. Linton was a divorce proceeding in which the trial judge awarded the wife spousal support of $2,500 per month. The order specifically provided that the support obligation would be binding on the husband’s estate. The husband appealed, arguing that the support order ought not to have been binding on his estate. The appeal was dismissed. On this issue, Court of Appeal wrote:
Should the support order be binding on the husband's estate?
The appellant contends that the trial judge should not have made the support order an obligation of the husband's estate. The appellant does not take the position that the trial judge had no jurisdiction to make the support order binding on the husband's estate, but rather that the trial judge should not have done so. Although the Divorce Act makes no specific provision making a support order an obligation of the payor's estate, there is ample authority to support the conclusion that the trial judge had jurisdiction to make the support order an obligation of the husband's estate: see Snively v. Snively, 1971 745 (ON SC), [1971] 3 O.R. 132, 19 D.L.R. (3d) 628, 6 R.F.L. 75 (H.C.J.); Connelly v. Connelly (1974), 1974 1319 (NS CA), 47 D.L.R. (3d) 535, 9 N.S.R. (2d) 48, 16 R.F.L. 171 (C.A.); Katz v. Katz (1983), 1983 3679 (MB CA), 21 Man. R. (2d) 1, 33 R.F.L. (2d) 412 (C.A.) [additional reasons at (1983), 25 Man. R. (2d) 57 (C.A.)]; Chadderton v. Chadderton, 1972 390 (ON CA), [1973] 1 O.R. 560, 31 D.L.R. (3d) 656, 8 R.F.L. 374 (C.A.); Krause v. Krause (1975), 1975 ALTASCAD 29, 64 D.L.R. (3d) 352, 23 R.F.L. 219, [1976] 2 W.W.R. 622 (Alta. C.A.); and Huff v. Huff (1971), 1971 1060 (MB CA), 16 D.L.R. (3d) 584, 4 R.F.L. 258 (Man. C.A.); Hemming v. Hemming (1983), 1983 4613 (NS CA), 145 D.L.R. (3d) 699, 58 N.S.R. (2d) 65, 123 A.P.R. 65, 33 R.F.L. (2d) 157 (C.A.) [leave to appeal to S.C.C. refused (1983), 1983 2821 (NS SC), 145 D.L.R. (3d) 699n, 57 N.S.R. (2d) 346n, 120 A.P.R. 346n]; Lesser v. Lesser (1985), 1985 2049 (ON SC), 49 O.R. (2d) 794, 16 D.L.R. (4th) 312, 44 R.F.L. (2d) 255 (H.C.J.) [affd (1985), 51 O.R. (2d) 100, 19 D.L.R. (4th) 575 (C.A.)]; Swalm v. Swalm (1973), 1973 1980 (ON SC), 12 R.F.L. 181 (Ont. H.C.J.); Burns v. Burns (1981), 1981 1122 (AB KB), 17 Alta. L.R. (2d) 30, 32 A.R. 367, 129 D.L.R. (3d) 178, [1981] 6 W.W.R. 685 (Q.B.). [bolding added]
[80] Schwartz Estate v. Schwartz was a case in which the court was asked whether the estate of the deceased payor of spousal support under an order made pursuant to the Divorce Act was obligated to pay the spousal support after the death of the payor. The divorce judgment contained no provision making spousal support binding on the payor’s estate.
[81] Associate Chief Justice Smith answered the question in the negative, asserting, at paragraph 23[^4], that:
“The obligation to pay support ends at death, unless the divorce judgment makes the support binding upon the estate of the payor...”
[82] The court continued, at paragraphs 27 - 29[^5]:
“While the law clearly contemplates maintenance orders under the Divorce Act being binding on the estate of the payor, the order must be explicit on this point. It takes clear, specific and unequivocal language before an order will be construed as binding on an estate.”
While [the Applicant payee] was entitled to apply to the court at any time before the payor's death to vary the order and/or make it binding on his estate, she did not do so.
“The order has now died with the payor and [the Applicant] cannot look to it in any way for relief.” [bolding added]
[83] In addressing the decision of Associate Chief Justice Smith in Schwartz Estate v. Schwartz, counsel for the Applicant correctly noted that there were no arrears of spousal support at the date of the payor’s death.
[84] He also asserted that the divorce judgment “contained no provision that made the… support order binding on the [payor’s] estate for obligations accruing due post-death.”
[85] In the submission of counsel, it was the “obligation” which accrued due post-death and since the order did not address that “obligation”, nothing was required of the payor’s estate in that regard after his death.
[86] I disagree with counsel’s characterization of what would have been required after the death of the support payor. In my view, the “obligation” was created by the divorce judgment made prior to the payor’s death. It was only payments to be made pursuant to such obligation which would have accrued due after the death of the support payor, but for the decision of Associate Chief Justice Smith.
[87] Nothing was written in the judgment about obligations “accruing due post-death”, however, because Associate Chief Justice Smith held that, with the death of the payor, the obligation to pay support ended (“the order…died with the payor…”).
[88] Counsel for the Applicant next took aim at and sought to distinguish the decision of the Manitoba Court of Queen’s Bench in Ducharme v. Ducharme, [1981] M. J. No. 26, a case relied upon by Associate Chief Justice Smith in deciding Schwartz Estate v. Schwartz.
[89] In that case, Justice Wilson denied the request of the surviving payee spouse, made after the death of the payor, to amend a divorce judgment which required the deceased payor to pay spousal support in the amount of $35 per month. His spousal support had been regularly paid up to the date of his death. The payee spouse sought to amend the judgment to make the estate of the payor liable to continue the payments.
[90] Justice Wilson stated the issue succinctly in the opening paragraph of his judgment, writing:
1 Upon the death of her former husband, may his divorced wife successfully apply to amend a decree pronounced under the Divorce Act (Canada) to make the estate of the former husband liable to continue maintenance awarded to the wife under s. 11 of the Act? I think, clearly not.
[91] Counsel for the Applicant sought to distinguish Ducharme v. Ducharme on the basis that the case dealt with ongoing spousal support payments which accrued due post-death.
[92] The articulation by Justice Wilson of the issue before the court, however, while more nuanced, was equally clear. It focused on the preliminary question of who, if anyone, might be liable for ongoing payments given the death of the support payor, rather than the subsidiary question of whether, having determined the answer to the preliminary question, the ongoing payments ought to continue to be made.
[93] In coming to the conclusion that an amendment to the divorce order could not be made, Justice Wilson reviewed other cases, particularly the decision of the Manitoba Court of Appeal in Huff v. Huff (1971), 1971 1060 (MB CA), 16 D. L. R. (3d) 584, in which it was held that “the obligation imposed by the decree is personal to the party whose burden it is”, meaning that the obligation lapsed with the death of the payor.
[94] Accordingly, upon the death of the payor, according to Huff v. Huff, there would be no ongoing spousal support accruing post-death in Ducharme v. Ducharme because the obligation to continue paying support lapsed with the death of the payor.
[95] Consequently, it was futile to seek to impose an obligation to pay ongoing support upon the support payor’s estate because the ongoing support obligation ended with his death.[^6]
[96] In formulating his conclusions, Justice Wilson also reviewed older authorities from England dating as far back as 1920[^7].
[97] He also cited the decision of Justice Barnard of the English Probate, Divorce and Admiralty Division in Scott v. Scott, [1952] 2 All ER 890, who held that an order for interim alimony came to an end upon the death of the support payor and, as a result, did not need to be discharged by a subsequent order of the court. As Justice Wilson put it, the “order for interim alimony was extinguished by the death of the husband.”
[98] A particularly pertinent decision relied upon by Justice Wilson was that of the English Court of Appeal in Sugden v. Sugden, [1957] 1 All E.R. 300. In that case, the order in question read, in part, as follows:
“It is ordered that Thomas Edward Sugden the respondent do pay or cause to be paid to Marjorie Sugden the petitioner… maintenance for the said children at…the rate of £300 per annum less tax for each child … The said sums to be payable monthly.”
[99] The payments were made regularly, and monthly, until the death of the payor Thomas Edward Sugden.
[100] The English Court of Appeal held that the payments did not need to be continued by the payor’s estate despite an application by the support payee to have that occur.
[101] At page 301 of the decision, Lord Justice Denning wrote:
“It is to be noticed that it is only “the respondent” who has to pay, not his personal representatives. It is an obligation which is personal to him and ends with his death. It only subsists during his lifetime. The father is to pay only so long as he is alive to pay…. The order does not say that his estate is to pay or that his personal representatives are to pay maintenance for the children. The obligation is at an end. I would like to add that, if it is desired to provide for maintenance for the children after the father's death, the proper way is to order the father during his lifetime to make a secured provision for the children by putting aside a fund on their behalf. That is contemplated by s 26(3) of the Matrimonial Causes Act, 1950. In the absence of a secured provision, I doubt whether the Divorce Court has any jurisdiction to order a man's personal representatives to pay maintenance for his children after his death. This is an additional reason for construing this order as I have done, so as to ensure that the court does not go beyond its jurisdiction…. The right to maintenance after his death must come from the terms of the order itself or not at all. As I have said, the order on its true interpretation gives no such right.” [Bolding added]
[102] Lord Justice Denning further observed that any claim for arrears of maintenance could only be pursued as a debt due by the estate.
[103] I pause at this point to note that, while England does not have a constitution which divides powers in the manner of the Canadian constitution, the statement by Lord Justice Denning which has been bolded very closely approximates the view of the Ontario Court of Appeal in Katz v. Katz, down to addressing how the court, in a divorce order, might provide for security to cover post-death support payments. In that regard, s. 26(3) of the Matrimonial Causes Act, 1950, referred to by Lord Justice Denning, would appear to be somewhat equivalent to s. 12 of the Federal Child Support Guidelines, referred to by the Ontario Court of Appeal in Katz v. Katz. The child support term in the decree nisi in the case at bar is also worded remarkably similar to that which was under consideration in Sugden v. Sugden, providing as follows:
“This court doth further order and adjudge that the Respondent pay to the Petitioner maintenance in the sum of $20 per week per child.”
[104] Justice Wilson also reviewed a number of Superior Court decisions in which support orders made under the Divorce Act had included an express term that the order was to be binding on the estate of the support payor. After having done so, he wrote:
18 Upon a proper case being shown, orders to the like effect, I think I may say, are not uncommonly made in this court. But, in the absence of such a term, the rule must I think be that the obligation to pay is extinguished by the death of the party whose responsibility it was to so maintain the former spouse, or their children. Payment of arrears, in such amount as may seem proper in the circumstances, may be enforced against the estate, provided the beneficiary of such order is still alive: Jachowicz v. Bate (1958), 1958 259 (MB QB), 24 W.W.R. (N.S.) 658.
[105] The distinction between the post-death effect of support orders containing an express provision making the terms of the order binding on a payor’s estate and those without such a term articulated by the Ontario Court of Appeal in Katz v. Katz and Justice Wilson in Ducharme v. Ducharme was also drawn by Justice Hutchison of the British Columbia Supreme Court in Despot v. Despot Estate, [1992] B.C.J. No. 1902.
[106] In that case, the divorce order provided for spousal support in favour of the wife in the amount of $500 per month, an amount which was later increased to $800 per month. The support payor died on November 11, 1990. In 1992, the support payee commenced a motion seeking to vary the support order by making it binding on the estate of the payor. The court held that the motion could not succeed:
“because in my view the obligation to pay maintenance dies with the person obligated to pay it, unless of course there is a specific agreement, or an order made during the lifetime of the person obligated to pay that it continues after death from his estate.”
[107] Counsel for the Applicant further sought to distinguish authorities such as Katz v. Katz and Schwartz Estate v. Schwartz by claiming that the motion to change only addresses pre-death arrears of support. As it was articulated by counsel for the Applicant:
“The within Motion to Change deals only with pre-death arrears and liability for quantifying the proper quantum of child support arrears for the pre-death period, plus interest and costs for that pre-death period. A retroactive child support order does not impose a new obligation, but simply enforces a past unfulfilled obligation that accrued due when the child support ought to have been paid.” [^8]
[108] Counsel for the Applicant submits that, in relying on Schwartz Estate v. Schwartz, the Respondent “ignores the distinction between child support accruing due before the death of the payor[^9] and child support obligations accruing due after the death of the payor.”
[109] This submission is similar to that made by counsel for the Applicant, supra, at para. 85, in respect of the same case. Consequently, my responses remain the same.
[110] Additionally, this submission fails to address the question of whether, upon the death of a support payor, any order thereafter exists which the court could amend.
[111] Counsel for the Applicant cites the decision of Justice Donegan in Bouchard v. Bouchard supra, at para 56 as authority for the proposition that “liability for child support, upon the death of the payor, has a pre-death and post death aspect.”
[112] Counsel further defines those two aspects as:
“The arrears obligation (Judgment Debt) to pay arrears that accrued during the payor’s lifetime for child support”[^10]; and
“The obligation to pay child support to a proper level (enforced by a retroactive, increased award) respecting the pre-death period continue after death of the support payor and bind his estate as a debt.”[^11]
[113] With all due respect, it is my view that, in asserting that the decision of Justice Donegan in Bouchard v. Bouchard stands as authority for the proposition that the “post-death aspect” of a support payor’s “liability for child support” includes an “obligation to pay” “retroactive, increased” child support, counsel for the Applicant is attempting to stretch the meaning of Justice Donegan’s words far beyond what she wrote.
[114] Justice Donegan’s complete statement found at Paragraphs 32-34 of the decision in Bouchard v. Bouchard is entirely consistent with the decision of the Ontario Court of Appeal in Katz v. Katz respecting post-death support obligations:
32 After a parent dies, their estate may be liable for outstanding and continuing child support payments. The personal representative of the estate plays a role in determining whether the estate is liable for these things. This role is summarized in the British Columbia Probate and Estate Administration Practice Manual, 2nd Ed. (Vancouver: The Continuing Legal Education Society of B.C., 2007) (loose-leaf updated 2018), sec.11.27:
If the deceased was, immediately before death, liable for payment to an estranged spouse or child under a separation agreement or a court order, any arrears outstanding immediately before death will be a debt payable out of the estate. The personal representative will also have to determine whether the estate is liable for ongoing maintenance for the period following death. If so, the estranged spouse or child will rank as an ordinary creditor of the estate for the future installments, and the personal representative will be obliged to provide for that claim before distribution to beneficiaries. Failure to do so will render the personal representative personally liable for devastavit (see sec.11.12).
33 In the past, under the common law, a payor's child support obligation ended upon death (see Milne v. MacDonald Estate, 1986 931 (B.C.C.A.) and R.M.R. v. H.V., 2005 BCSC 52 at paras. 16-22), unless the parties reached an agreement or there was a court order specifying that the payor's support obligations would continue beyond his or her death. If there was such an agreement or court order in existence at the time of death, these obligations could continue as a liability of the estate: Crain v. Crain, 1996 CarswellBC 1174 (S.C.) at paras. 11-15.
34 The common law I have just described has now been changed by the FLA. 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 now 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). [Bolding added]
[115] My reading of Justice Donegan’s decision leads me to the following conclusions:
- the common law respecting a payor’s child support obligations ending upon death can only be changed in one of three ways:
i. an agreement, existent at the date of death, specifying that the payor’s support obligations continue beyond death;
ii. a court order, existent at the date of death, specifying that the payor’s support obligations continue beyond death; or
iii. a legislative amendment to the common law.
whether there exists at the support payor’s date of death such an agreement or order is a matter to be determined by the estate trustee; and
the case was decided under the British Columbia Family Law Act rather than the Divorce Act.
[116] Under British Columbia’s Family Law Act, the law respecting a payor’s child support obligations ending upon death had been changed[^12], as it has been in Ontario.
[117] As the Ontario Court of Appeal pointed out in Katz v. Katz, no such change has been made under the Divorce Act and, as I have noted, there may be constitutional reasons why that has not occurred.
[118] Absent a situation which changes the common law, there is nothing in the decision of Justice Donegan in Bouchard v. Bouchard which supports the submission of counsel for the Applicant that there exists, under the Divorce Act, an independent post-death “obligation” which requires a support payor’s estate “to continue to pay child support to a proper level…respecting the pre-death period”, let alone that such an illusory obligation can be “increased” retroactively.[^13]
[119] The Applicant next claims that potential liability for changes to a pre-existing child support order which is amended pursuant to section 17 of the Divorce Act is an estate debt for which a deceased support payor’s estate is liable.
[120] In support of that submission, counsel for the Applicant relies upon the following statement found at paragraph 78 of the concurring judgment of Justice Martin in the Supreme Court of Canada decision in Michel v. Graydon, 2020 SCC 24:
“unmet child support obligations, whether they are in the form of arrears or have not yet been judicially recognized, “are a valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant…”
[121] Counsel takes the position that the words “or have not yet been judicially recognized” addresses amounts which might be judicially recognized as owing retroactively on a motion to change, regardless of when that recognition occurs.
[122] Counsel submits that the Respondent’s position that a motion to change cannot be brought after the death of a support payor, in the absence of explicit language making clear that the support order binds the payor’s estate, “is without any basis, in law, respecting arrears accrued due pre-death of the payor and liability for a determination of the proper amount of arrears respecting the same pre-death period.”
[123] Because Michel v. Graydon factors substantially into the case being made by the Applicant, it is in order to review its salient facts.
[124] The parties were not married. They had one child who, after separation, lived with the mother. The father agreed to pay child support based on his stated annual income. A consent order embodying this agreement was made in 2001. The child support order was terminated in 2012, when the parties’ child was 21 years of age.
[125] It turns out that the father had understated his income for every year of the order’s existence except one. In January 2015, the mother applied under section 152 of British Columbia’s Family Law Act to retroactively vary child support for the period that the consent support order had been in effect, to reflect the father’s actual income during that period.
[126] The hearing judge allowed the mother’s application and ordered the father to pay retroactive child support. The Supreme Court of British Columbia allowed the father’s appeal and set aside the original order, relying upon the decision of the Supreme Court in DBS v. SRG, 2006 SCC 37, which had held that an original application for retroactive child support under the Divorce Act had to be made while the child entitled to the support remained a child of the marriage. The British Columbia Supreme Court held that such a finding was equally applicable for child support sought under the Family Law Act. The Court of Appeal dismissed the mother’s appeal. The Supreme Court of Canada allowed the appeal and reinstated the original order.
[127] Counsel for the Applicant characterizes the case at bar as being about:
unpaid child support accruing due prior to the death of the support payor; and
the support payor’s estate’s liability for a retroactive variation in the amount of the pre-death support obligation.
[128] As articulated by counsel for the Applicant, “the proceeding simply enforces a past unfulfilled obligation”, citing a comment in substantially the same language made by Justice Brown at paragraph 11 of Michel v. Graydon.
[129] Thus, according to counsel for the Applicant, the death of the support payor is, as far as setting the quantum of past support is concerned, a non-event, because the original support obligation, which is being amended retroactively, was imposed while the payor was still alive.
[130] Counsel for the Applicant asserts that the decision in Michel v. Graydon stands as authority for it being possible to vary a child support order after the order has “expired”, a term he equates to “payment no longer being required.”
[131] He fails to address whether an order which has “expired” is different than an order which has “died with the support payor”, as Associate Chief Justice Smith held to occur in Schwartz Estate v. Schwartz.
[132] Nor does counsel for the Applicant endeavour to resolve the conundrum created by trying to square the finding of Associate Chief Justice Smith in Schwartz Estate v. Schwartz that an order which has died with the payor “can[not]…be looked to… in any way for relief” with counsel’s claim that such an order can be amended retroactively.
[133] This conundrum is best illustrated by examining what it is that the Applicant seeks in this proceeding – the recalculation and determination of amounts that should have been paid in the past by the deceased support payor, based on changes in his income over the years.
[134] Support arrears, in whatever amount, do not exist untethered to the order which creates them. A court cannot simply declare an amount to be owed. It must first calculate the amount. Then, the court must create the obligation by which that amount is to be paid. The court creates the obligation by amending the previous order. This is, after all, a Motion to Change an order. Over many years, that might, as in this case, involve many amendments to many previous orders – the original order and subsequently amended orders. Therefore, for the Applicant to prevail, for each material change in the deceased’s income the court would have to adjust the previous order, whether that be the initial one or a subsequent, varied order based on a different income. How can a court amend, retroactively, an order that “died with the support payor?” In my view, the Applicant simply cannot solve that conundrum.
[135] Counsel draws upon Justice Brown’s comment at paragraph 25 of Michel v. Graydon that:
“… There is nothing wrong in principle with varying an order that no longer imposes continuing support obligations at the time the application is made, so long as the statutory text allows for that result”
for the conclusion that the Applicant’s motion to change brought after the death of the support payor is well-founded and, indeed, supported by the decision.
[136] It is important to recognize what the Supreme Court of Canada did and did not decide in Michele v. Graydon.
[137] The case had nothing to do with the Divorce Act. As the court noted at paragraph 14 of the decision:
“The narrow question to be decided here is, ultimately, whether [British Columbia’s Family Law Act] authorizes variation of an existing child support order after the beneficiary ceases to be a “child”.”
[138] More to the point of this case, the Supreme Court specifically noted, at paragraph 15, that the issue of whether a court can retroactively vary a prior child support order made under the Divorce Act after the child for whose benefit the order was made had become an adult (a factor in this case) was not settled by its prior decision in DBS v. SRG and, thus, remains unresolved.
[139] Significantly, the Supreme Court also reaffirmed that:
“…it remains that “a case is only an authority for what it actually decides” (Quinn v. Leatham, [1901] A.C. 495 (H.L.), at p. 506)”
[140] On that standard, Michel v. Graydon is not authority for the relief being sought by the Applicant.
[141] Notwithstanding, counsel asserts that the decision in Michel v. Graydon “encourages statutory interpretation that allows for retroactive child support.”
[142] Even if it does, surely it can be said to only encourage such an interpretation based on the facts that were before it – that of two living, unmarried parents, as opposed to facts which involve a divorced, deceased support payor and a payee who waits until after the payor’s death to seek the retroactive variation.
[143] Additionally, in this case, the court needs to factor in several decisions holding that, without more, the support obligation ends with the payor’s death – none of which were pertinent to the decision in Michel v. Graydon – and have regard to a possible underlying constitutional issue which touches on the issue.
[144] Counsel for the Applicant sought to expand the reach of Michel v. Graydon by noting similarities in wording between the section of the British Columbia legislation under review in that case and section 17 of the Divorce Act, suggesting that, because both Acts authorized the variation of “an order” pertaining to child support, “without limitation as to the date for retroactivity or quantum”, “limitations respecting the jurisdiction to change a child support order should not be implied into section 17(1) of the Divorce Act upon any motion to change brought by her former spouse.”
[145] Counsel’s submission on this point is, in my view, fully answered in three ways.
[146] The first is by the fact that, in a substantial majority of the cases which held that the death of a support payor prevented the surviving spouse from having the original order amended, s. 17 of the Divorce Act existed in the exact same language as is in place today. Not one of those courts, including Courts of Appeal in Ontario, Manitoba or British Columbia, saw fit to hold that the power to amend or vary an existing order under s. 17 of the Divorce Act answers the threshold question of whether, upon the death of a support payor, a basic support order, without more, any longer exists.
[147] The second is implied by the decision of Justice Herold of the Ontario Superior Court in Brubacher v. Brubacher Estate, [1997] O.J. No. 2466.
[148] In that case, a divorce order was made following a trial on July 18, 1996. Justice Herold, as the trial judge, ordered the husband to pay monthly support in the amount of $2000 to the wife for the period between July 1, 1995 and June 1, 1999. The husband died on March 21, 1997.
[149] The issue in the reported decision was whether or not the support to be paid monthly survived the death of the husband and constituted a continuing charge against his estate.
[150] Justice Herold wrote:
7 Counsel for the applicant sought what amounts to a variation of the Divorce Judgment to provide that the support payments after death are specifically a charge against the estate of the deceased and alternatively an order confirming that the judgment as issued is in fact a charge against the estate. Counsel for the respondent resists both.
8 I am satisfied that I do not have the jurisdiction to vary the Divorce Judgment after death. A claim for support, and axiomatically a claim to vary support must be made against a spouse, not a deceased spouse. There is no provision in the Divorce Act for such claims.[^14] [Bolding, underlining added for emphasis]
9 Counsel for the applicant argues that there is ample authority for a court making an award providing for the continuation of support payments after the death of the payor including, for example, Linton (1990) 1990 2597 (ON CA), 30 R.F.L. (3d) 1 and Snively (1971) 1971 745 (ON SC), 6 R.F.L. 75, I agree. Those cases are clearly distinguishable from the situation before me since the orders sought were made against a living spouse.
10 Counsel for the respondent relies on the judgment of the British Columbia Supreme Court in Despot (1992) 1992 2293 (BC SC), 42 R.F.L. (3d) 218. I agree with Hutchison, J's conclusion that there is no jurisdiction to make the order sought varying the original Divorce Judgment after the death of the payor.
11 In addition to the absence of any statutory authority for making the first order sought by the applicant there are in my view good public policy reasons as well. The question of support for spouses and former spouses of deceased persons is specifically provided for in the Succession Law Reform Act, Statutes of Ontario, c. S-26, s. 57 and following. In the event that Mrs. Brubacher is not entitled to support under the original Divorce Judgment she would clearly be entitled to at least make a claim under those relevant sections of the Succession Law Reform Act.
[151] The third is the decision of the British Columbia Court of Appeal in British Columbia (Public Trustee) v. Price, [1990] B.C.J. No. 580, in which the Applicant’s assertion that “limitations respecting the jurisdiction to change a child support order should not be implied into section 17(1) of the Divorce Act upon any motion to change brought by her former spouse” is flatly rejected.
[152] In this case, under the terms of a decree nisi of divorce granted in Albert in 1980, the husband was to pay $75 per month in child support for each of three children of the marriage. The husband made no payments, dying in 1986. The youngest child was still entitled to ongoing support at the date of the payor’s death.
[153] In November 1987, an order was made setting arrears of support and making them a debt payable by the payor’s estate. Additionally, the support obligation with respect to the youngest child was directed to be paid as a lump sum rather than monthly.
[154] The original decree nisi and the subsequent order were registered pursuant to section 20 of the Divorce Act in British Columbia. The Public Trustee sought an order declaring that the support provisions did not bind the estate of the deceased payor and requested that the registration of the Alberta orders in British Colombia be set aside. That request was dismissed.
[155] The Public Trustee appealed only with respect to the registration of the order made after the death of the support payor. The British Columbia Court of Appeal set aside the registration of the post-death order.
[156] The position of the Public Trustee was that the original support order did not continue to require future current payments after the death of the support payor, although it remained a valid order with respect to payments that had accrued up to the date of the payor’s death. The Public Trustee suggested that the weight of the authorities supported its position, citing several cases to the effect that a child support order may continue beyond the death of the paying spouse and be made to bind the estate only if the order specifically states that it is to continue beyond the death of the paying spouse and to bind the estate.
[157] In its decision, the court considered section 17 of the Divorce Act and made the following comment (at pg. 6 of 7):
“…in my opinion, a variation order cannot be made which would have the effect of making maintenance payable by the estate when no maintenance payments by the estate were provided for in the original order or in a variation order made during the paying spouse’s lifetime. It would make nonsense of the entire legislative scheme if something could be done in a variation order which could not be done in an original order, namely, create a maintenance obligation of the part of an estate which was not expressly provided for in the lifetime of the paying spouse.”
[158] That statement applies exactly to the circumstances of this case.
[159] Counsel for the Applicant next suggests that to not make the retroactive changes to the support award would be to grant immunity to the payor for not having met his support obligation. The support payor is dead and beyond the point of such immunity.
[160] The Applicant also relies upon the Supreme Court of Canada decision in DBS v. SRG, 2006 SCC 37 and the decision of the Ontario Court of appeal in Colucci v. Colucci, 2017 ONCA 892, both of which, in my view, are distinguishable for the same primary reason as Michel v. Graydon – neither addressed the effect of the death of a support payor on the continued existence of a basic child support order made pursuant to the Divorce Act.
[161] Counsel for the Applicant lastly submits that the court possesses a “discretion…once the motion to change is brought, as to the extent of retroactivity and quantum of increased child support.”
[162] Counsel suggests that there exists a new look “legislative intent” in the Divorce Act which is “to give broad discretion in matters of child support” with regard to “extent of retroactivity and quantum of increased child support (D.B.S. four factors).”
[163] I disagree with the approach suggested by counsel for the Applicant. It would have the court ignore the death of the support payor, allow the motion to change to proceed and, having embarked on that undertaking, consider the “extent” to which it would have retroactivity occur and the quantum of any change in child support.
[164] I prefer the approach suggested by the decided cases, relied upon by counsel for the Respondent, which have previously addressed the issue before this court, which is to determine, as a threshold question, whether such an application can be brought in the first place.
[165] Only if the court decides that the application can be brought would it then proceed to the stage suggested by counsel for the Applicant.
Conclusion
[166] I am satisfied, based on my review and analysis of the decisions in the cases enumerated herein - two from the Ontario Court of Appeal which I regard as binding on me, one not but cited by the Ontario Court of Appeal, together with decisions from the British Columbia Court of Appeal and the Manitoba Court of Appeal and various trial courts which, while not binding on me, are on point – that:
the condition of Family Law Rule 16(12)(a) has been met, in that the answer to the question of law raised by the Respondent disposes of the case;
the Applicant’s Motion to Change, having been brought after the death of Theodosius Tkacz, is fatally flawed;
consequently, the Application must be dismissed.
[167] My comments extend, as well, to the Applicant’s attempt to secure interest on any alleged unpaid child support under the terms of the original order. Since that order no longer exists, there is nothing to which I can, or should, affix an order for interest.
[168] As a result, the Applicant’s cross-motions are also dismissed.
Costs
[169] Counsel for the Respondent presented me at the time of the motion with a Bill of Costs. He seeks costs, either in the amount of $26,278.72 for full indemnity fees, disbursements and HST, or $17,765.42 for partial indemnity fees, disbursements and HST.
[170] The Respondent was the successful party on the motion.
[171] The Applicant has not had an opportunity to make submissions in respect of the costs sought by the Respondent.
[172] I will grant counsel for the Applicant a period of 10 days in which he may, if he wishes, make written submissions on costs. The submissions shall not exceed 3 pages, in 12-point Times New Roman Font on lines 1.5 spaces apart.
[173] If he makes submissions, counsel for the Applicant shall also disclose what he billed his client for this motion, since what an unsuccessful party pays to their lawyer is a consideration when setting costs.[^15]
[174] The submissions, if any, shall be submitted through the Trial Coordinator at St. Thomas.
[175] If submissions are not received from counsel for the Applicant within the 10 days, I will proceed to make my decision on costs thereafter without regard to the views of counsel for the Applicant.
Justice T. Price
Date: January 25, 2021
[^1]: Unfortunately, the quote cited by Justice Shaughnessy was from the dissenting judgment in the British Columbia Court of Appeal decision in Hampton v. Hampton. In both cases, the issue was whether a deceased spousal support recipient’s estate could recover arrears of spousal support. The British Columbia Court of Appeal held (2-1) that it could not. Justice Shaughnessy held, in effect, that it could. In its later decision in Milne v. MacDonald Estate, [1986] B.C.J. No. 600, the British Columbia Court of Appeal explained that its decision in Hampton v. Hampton held that “maintenance is a personal right that can only be enforced during the lifetime of the spouse who holds the order.” (at para.21)
[^2]: While it would seem to be a self-evident proposition that, in cases where the child for whom support was to be paid is not, at the date of death of the support payor parent a “dependent” for purposes of the Succession Law Reform Act, unpaid arrears of child support owing at the date of death of the support payor are, notwithstanding, debts of the support payor’s estate, case law on that specific point seems to be scarce. The Respondent appears to take the position that, if the ‘child” for whom the support was to be paid is not, at the date of the support payor’s death, a dependent of the deceased support payor, that “child” has “no standing…to assert a claim against the Estate of the deceased…” I question whether a claim for such unpaid arrears as a debt should be litigated under ss. 44 or 45 of the Estates Act, R.S.O. 1990, c. E.21. If so, such claims would not be litigated in the Family Court, by virtue of their exclusion from the Schedule to s. 21.8 of the Courts of Justice Act R.S.O. 1990, c. C.43.
[^3]: Correct citation of the Supreme Court denial of leave: [1983] S.C.C.A. No. 227
[^4]: Paragraph 24 in [1998] O.J. No. 378
[^5]: Paragraphs 28 - 30 in [1998] O.J. No. 378
[^6]: A similar result occurred in the Nova Scotia decision of Aker v. Aker (1958), 1958 574 (BC SC), 26 W.W.R. (N.S.) 734
[^7]: Coleman v. Coleman, [1920] P. 71
[^8]: Applicant’s Amended (Volume 2) Factum, page 5, paragraph 13, citing Michel v. Graydon, 2020 SCC 24 at paras. 11 and 79
[^9]: Here, counsel for the Applicant appears to be referring to the second and third of the three types of payment obligations which arise from a support order imposed under the Divorce Act in a case where the support payor later dies (supra, para. 49)
[^10]: What I have referred to, supra, at fn. #9 as the second type of payment obligation
[^11]: What I have referred to, supra, at fn. #9 as the third type of payment obligation
[^12]: Per Justice Donegan at para 34.
[^13]: Indeed, as Justice Donegan points out in Bouchard v. Bouchard, even British Columbia’s Family Law Act does not make the post-death continuation of a pre-death support obligation automatic. It is subject to a judicial discretion, based on the court’s examination of a number of factors.
[^14]: Notwithstanding these findings, Justice Herold did make an order requiring the estate to continue paying support until the end of the fixed period established by the original order. In doing so, he recognized that “this is an issue which might well be considered in an appellate forum.” No report of an appeal has been found. The decision, however, has not been overruled or commented upon negatively since it was released.
[^15]: Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130