All About Estates

The Court of Appeal Considers if an Application for Retroactive Support can be brought against an Estate

In Blacklock v. Tkacz, the Ontario Court of Appeal confirmed that pursuant to section 17 of the Divorce Act, an application cannot be brought to claim or vary a child support order against a deceased’s payor’s estate if the original support order does not explicitly bind the payor’s estate.

The Appellant was the ex-wife of the deceased. The parties had divorced in the late 1970s and a divorce order granted in 1978. The Appellant brought an application against the deceased’s estate seeking retroactive child support payments and to vary the couple’s 1978 child support order. The 1978 order provided for miniscule child support payments. The motion judge dismissed the matter. Pursuant to the terms of the Divorce Act, a party cannot bring a claim for or seek to vary a support order against a Deceased’s estate if the original order is silent on binding the payor’s estate.

The Appellant appealed. The Court of Appeal upheld the lower court’s decision and dismissed the appeal. The motion judge was correct that a variation order cannot be brought after the death of the payor.  The payor’s estate was not bound to the terms of the support agreement granted pursuant to the Divorce Act as a payor’s obligations cease upon death unless the order provides otherwise.

However, the Court noted that unlike the Divorce Act, the Family Law Act does have a provision binding the payor’s estate.  The Court also noted that other relief may be available to the Appellant under the Family Law Act.

Thanks for reading

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com

0 Comments

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.