By Kayleigh Pink, Associate Research Lawyer, Lam Family Law*

There are few differences between child support orders made under the provincial Family Law Act versus the federal Divorce Act. However, an important distinction remains with respect to whether the child support order automatically binds the estate of the payor.

The Family Law Act contains an explicit provision that a child support order automatically binds the estate of the payor unless the order provides otherwise: Family Law Act, RSO 1990, c F.3, s. 34(4).

In contrast, the Divorce Act contains no comparable provision. Although there was previously conflicting case law on what this meant, the Court of Appeal for Ontario (“ONCA”) in Katz v. Katz, 2014 ONCA 606 (CanLII) held that a child support order made under the Divorce Act ends when the payor dies unless there is specific language to the contrary. The court has jurisdiction to make a child support order under the Divorce Act binding on a payor’s estate, but requires explicit language to this effect: Katz v. Katz, ibid, at para 72; citing various cases. See also B.D.D. v. A.M.M., 2019 ONSC 6503 (CanLII), at para 57, citing Linton v. Linton, 1990 CanLII 2597 (ON CA).

Katz v. Katz received a lot of attention when it was released. It was primarily about the court’s ability to order a payor to obtain, not just maintain, life insurance to secure the payment of an order for support. The ONCA found that the same power existed under the Family Law Act and the Divorce Act to permit the court to make such an order. However, “a court should proceed carefully in requiring a payor spouse to obtain insurance.” The ONCA outlined some of the evidentiary considerations and gave guidance on how to determine the appropriate amount of insurance: Katz v. Katz, 2014 ONCA 606 (CanLII), at paras 73-74. These paragraphs of the decision are frequently cited, although not much attention has been paid to the ONCA’s reminder that, “when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor’s estate.”: Katz v. Katz, ibid, at para 74.

The legislative difference is clearly illustrated in Blacklock v. Tkacz, 2021 ONCA 630 (CanLII). In this case, there was a 1978 Divorce Act order that the father pay $20 of child support per week for each child. The order was silent on whether the support obligation would be binding on the father’s estate. After the father’s death, the mother sought to vary the 1978 order to be binding on the father’s estate: Blacklock v. Tkacz, ibid, at paras 2-3 & 6.

At the motion, which was decided on a summary judgment basis as a question of law, Justice Price held that an application could not be brought under s. 17 of the Divorce Act “to claim or vary a support order against a decedent’s estate if the original order is silent on whether that order binds the estate.”: Blacklock v. Tkacz, ibid, at paras 4-5, citing Katz v. Katz, 2014 ONCA 606 (CanLII), at para 72. The ONCA upheld Justice Price’s decision, noting that, since there was no order binding the estate, there was no subsisting order that could be varied to bind the estate: Blacklock v. Tkacz, ibid, at para 6.

The ONCA also made the following two statements:

  • “The appellant [mother] did not make a claim for alleged arrears of support that arose during the life of the payor, as she might still”. Rather, her application only sought to vary the 1978 order: Blacklock v. Tkacz, ibid, at para 6.
  • “Nor does anything in these reasons prevent her [the appellant mother] from seeking relief under the Family Law Act, if available”: Blacklock v. Tkacz, ibid, at para 6.

The first statement can be explained by a footnote from Justice Price’s motion decision, where His Honour wrote that “unpaid arrears of child support owing at the date of death of the support payor are, notwithstanding, debts of the support payor’s estate”: Blacklock v. Tkacz, 2021 ONSC 583 (CanLII), at footnote 2.

The second statement is less clear. The court has previously held that a claim for support under the Family Law Act “abated” on the death of a payor, and a dependant’s right to support thereafter, if any, is governed by the Succession Law Reform Act: McElligott Estate v. Damecour, 2005 CanLII 13995 (ON SC), at paras 14-18, Blishen J. Therefore, now that the payor had died, it is unclear what relief under the Family Law Act could be available to the mother in Blacklock v. Tkacz.

Main Takeaway

Blacklock v. Tkacz did not receive as much attention as Katz v. Katz, but this main takeaway is worth repeating: if a child support order is made under the Divorce Act, explicit language is required to make the order binding on the payor’s estate.

If the order is silent on whether the estate is bound, then, except for unpaid arrears, the payor’s child support obligations will die with the payor and it appears that a dependant will be left to pursue a claim under the Succession Law Reform Act. This is a huge procedural difference that should not be overlooked.

*with thanks to Vanessa Lam for her suggestions and edits.