Wills, Estate & Power of Attorney

If a Parent Has Died, Can Retroactive Support Be Sought from His or Her Estate? 

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

If a Parent Has Died, Can Retroactive Support Be Sought from His or Her Estate? 

The Ontario Court of Appeal considered an interesting legal issue recently: Whether retroactive child support can be validly claimed against a deceased person’s Estate.

In Blacklock v. Tkacz, the mother and father married in 1969, and had two children soon after.  They separated in 1973.  Five years later, the Ontario court granted their divorce and gave the mother custody of the children.  It also ordered the father to pay weekly support of $20 for each child.

The father died in March of 2019.  The original child support order was still in force at time, but it was silent on whether the father’s support obligation could be binding on his Estate now that he had passed away.

In October of that same year, the mother decided to bring a motion against the Trustee of the deceased father’s Estate, requesting an order for $275,000 in lump-sum retroactive support for the two children.  In the mother’s contention, this reflected the cumulative child support that the father should have been paying up until about 1998, when both children had finished their post-secondary education and no longer qualified as “children of the marriage”.   Importantly, she brought her motion for retroactive child support under the federal Divorce Act.

That legislation was unfruitful in providing the mother with a retroactive remedy. The motion judge in the lower court flatly precluded the mother from bringing her claim for retroactive support at this stage, since nowhere in the original Divorce Act order from 1978 did it state that the father’s Estate could be bound by a support order of any type.

The mother brought a formal appeal, but it too was dismissed.  The Ontario Court of Appeal confirmed the principle that under the Divorce Act, no legal claims were sustainable against the father’s Estate by way of his trustee – just as no legal proceeding could be brought against the now-deceased father himself.

(This is in contrast to the provincial Family Law Act, which expressly states that every support order binds the Estate of the parent or individual who has the support obligation).

Next, it was impossible in these circumstances to retroactively vary the father’s Divorce Act-based child support obligations after his demise.  Under Canadian law, a support obligation under the federal divorce legislation ends when the support payor dies, unless there is an agreement to the contrary. Plus, with no valid order binding the Estate in the first place, there was no order capable of being varied now to allow for support to be paid on a “looking backwards” basis.

These two conclusions foreclosed the mother’s retroactive support claims for the period up to 1998.

However, the court pointed out that if she felt she had child support claims that arose during the father’s lifetime, she could still assert those claims at this point.  Or, she could opt to bring a claim under the more expansive and flexible Family Law Act instead, since it does not bear the same limitations found in the Divorce Act, respecting the impact of the support-payor’s demise.

For the full text of the decision, see:

Blacklock v. Tkacz, 2021 ONCA 630

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.