We’ve discussed how after a support agreement and/or order has been made and listed with the Family Responsibility Office (FRO), in the case of non-payment, there are a number of enforcement methods which the FRO can utilize to collect the payment or pressurize the payor into making the payment. Nevertheless, the question remains as to what the status of the payment would be in the case of the payor’s death. Does the obligation to pay end or can it be charged upon the estate of the deceased?
S.34(4) of the Family Law Act of Ontario clearly stipulates that “(a)n order for support binds the estate of the person having the support obligation unless the order provides otherwise.”, nevertheless no such provision exists in the Federal Divorce Act 1985 (Katz v. Katz ), however if one were to assess the wording of the Divorce Act 1985 which in relation to spousal support states that:
“A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.” (S.15.2(1) Divorce Act 1985)
It appears that the provision can be interpreted or construed to include the ability to make a support order binding on the estate of a payor. This has indeed been the view of the Ontario Courts who have read in the authority to do so by virtue of the provision allowing them to order the payor to ‘secure and pay’ spousal support. This charge on the estate of a deceased spousal support payor however must by explicit language be clearly required in the spousal support agreement or order.
The courts in a comparatively recent judgment of a 2017 case, Dagg v. Cameron Estate upheld this opinion and also reasserted the ability to place a charge on the proceeds of a life insurance policy of the payor. The recipient of the spousal support, where such a support order has been made is treated like a creditor who has rights on the estate of the deceased. It is however important to note that although the courts have in the past required a spouse to take out a life insurance policy with the recipient as a beneficiary, the 2014 judgement in Katz v. Katz clarifies this matter by stating that the courts do not have the authority to require that a payor of spousal support take any such matters. The judgement states that “(a)n obligation to obtain life insurance should neither be imposed nor enforced. FLA s.34 permits a court to order a spouse who has insurance to designate a dependant as a beneficiary, but it does not permit a court to require a spouse to obtain or reinstate life insurance. This is in stark contrast to an earlier 1999 decision of the courts in Laczko v. Laczko.
It is also important to note that the authority to ‘secure’ payment of the spousal support is not restricted to estate of the payor of spousal support. The courts can place a security on the current property of the payor as stated in Boisvert v. Boisvert on the following basis;
- Where a payor has a history of dissipation of assets, that is, unable to handle money
- Where the payor is likely to leave the jurisdiction and become an absconding debtor;
- Where the payor has in the past refused to honour a support obligation;(whether required by order, contract or obligation refused to pay);
- Where the payor has a poor employment history or has indicated (he or she) will leave employment (payor has extravagant lifestyle and has been unco-operative with the spouse in the past);
- Where the payor is out of the jurisdiction at the time of hearing but has assets in Ontario capable of forming the basis of a security order; and
- Where the payor has declared that he will not pay an eventual support order.
If you need help with enforcing a Family Law order, MEHDI AU LLP has experienced Family Lawyers on staff to help you out. Please contact us today.
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