Perhaps encouraged by the recent decision in Marasse Estate, we have another recent case from the Alberta Court of Queen's Bench addressing an estate's ability to claim spousal support and its liability to pay spousal support. Stalzer v Stalzer, 2018 ABQB 191 is reassurance to estate planning and family law practitioners that a person's obligation to pay spousal support to their deceased ex-spouse's estate is not a general rule of law and was specific to the drafting of the various agreements in play in Marasse.
In Stalzer, the executor of the deceased husband's estate brought an application against the deceased's wife for retroactive child support, unequal property division and occupation rent. The wife brought a cross-application for retroactive spousal support and child support, and unequal division of matrimonial property. The matter was heard as a Special Chambers application, which is hearing for any matter that will take longer than 20 minutes to argue, and is usually argued on the basis of written affidavit evidence alone.
Background
At the time of the husband's death, the parties had been separated for close to 10 years. There were three children of the marriage, one of whom was a minor at the date of death. After the separation, the children initially lived with the mother in the matrimonial home. They all eventually moved in with their father. The husband had commenced a claim for divorce and division of matrimonial property, but no agreement and no Court Orders issued in the meantime. The husband initially voluntarily paid child support, but he reduced those payments as each child moved in with him, eventually stopping altogether.
After the husband's death, the wife made an application for child support. Two Consent Orders were granted by the Court as a result: the first named the eldest daughter as the guardian of the youngest and provided that the youngest daughter would continue to live in her usual residence under the care of the executor (the deceased's brother). The second Order required the wife to pay child support to the executor.
Issues at hearing
Justice Read considered four issues in total, but two are material from an estate practitioner's perspective:
- Can an estate maintain a claim for retroactive child support against the spouse of the deceased, and can a surviving spouse maintain the same kind of claim against the estate of a deceased spouse?
- Can a spouse maintain a claim for retroactive spousal support against the estate of the deceased spouse?
On the first issue, Justice Read considered the Survival of Actions Act, the Divorce Act and the common law. She concluded that nothing in the Survival of Actions Act prevented a personal representative from bringing or defending an action for retroactive child support. However, based on the wording of the Divorce Act, she held that the general rule respecting survival of actions did not apply in the family law context if the initial application was being made only after the death of one party.
Justice Read confirmed that based on her interpretation of the Divorce Act, absent a specific order or agreement making an obligation binding on the estate, child support obligations are personal and die with the spouse. This is because that act only obligates spouses or former spouses to pay child support. A deceased person did not meet that definition, neither did their estate, which is a legal concept, but not a legal entity.
The Court reached the same conclusion on the second issue on the same basis. Justice Read relied heavily on the reasoning in the British Columbia case of Petley-Saba v Saba, 2017 BCSC 667, for the principle that support obligations do not continue beyond the death of the payor, absent a specific agreement or Court order.
The takeaway
The result in Stalzer is probably what the surviving spouse in Marasse was hoping for. However, as we've seen, committing spousal and child support obligations to writing or to a Court order is key to their enforceability following the death of one of the spouses. On the other hand, not paying adequate attention to the effect of such clauses may have catastrophic consequences for the surviving spouse. This case is yet another reminder that an ongoing dialogue between the family lawyer bar and the estate planning bar in Alberta should be encouraged on a regular basis.
Predrag (Peter) Tomic is a wills and estates lawyer with a focus on complex estate and trust litigation, estate planning and probate matters.
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