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In a recent decision from the Court of Queen’s Bench, Stalzer Estate v. Stalzer, [2018] A.J. No. 315 the Court held that the Estate of a deceased father could not claim retroactive child support against the living spouse.

In Stalzer, the father had the primary care of his two underage children, while his adult child also resided with the father.  The children had originally resided with the mother before choosing to relocate to live with the father.  During the time that the children were with the mother, the father voluntarily paid child support and the parties did not enter into any order requiring the father to do so.  After all children had relocated to reside with the father, he ceased paying child support, but did not bring any application or even request child support from the mother.

After the father’s death, the father’s estate brought an application against the mother for retroactive child support.  The mother also brought an application against the father’s estate for retroactive child support, alleging that the father did not pay a sufficient amount of child support during the time that all or some of the children were in her care.

In Stalzer the Court points out that the Survival of Actions Act would appear to permit both the father’s estate and the mother to bring claims as against each other.  However, the Court does not end its analysis there.  Rather, it notes that the Divorce Act limits who may bring an Application for child support to “spouses”, which also includes “former spouses”.   In respect of this the Court holds that there is nothing in the Divorce Act that permits a non-spouse to make an application for Child Support, and ultimately finds that once a person passes away, they cease to be a “spouse” or “former spouse” – all that is left is “a body, an estate, and a personal representative.”  Extending this further, the Court holds that neither a dead body, nor an estate can be considered a “spouse” or a “former spouse,” thereby barring any such application for child support from the estate.

The Court does recognize the case of Chalmers Estate v. Chalmers [1990] A.J. No. 978 wherein an estate of a deceased was granted standing to continue an application in respect of child support that had been commenced prior to the death of the mother.  The Court in Stalzer distinguishes Chalmers on the basis that there had been a pre-existing child support order, and that the mother had brought an application in respect of that order prior to her death.  The Court stated that the difference was because in Stalzer, “no application or order was made by either party prior to the death of Mr. Stalzer.  No order had been made and so there was nothing to survive the death of Mr. Stalzer.”

What is not addressed or disclosed in this case is who, if anyone, could make an application for retroactive child support.

Given the unavailability of the Divorce Act for pursuing child support, the only other legislation available to the parties in Alberta would be the Family Law Act.  Under section 50(1) of the Family Law Act, the guardian or the person who has care and control of the child may being an application for child support – it does not necessarily need to be a parent of the child.  In Saltzer, the eldest child agreed to act as the guardian of the youngest child, while the executor of the estate would have primary parenting of the youngest child.

Given the above, it would seem that there would be no bar from either the executor or the eldest child from bringing an application for child support against the mother.  Further, the Supreme Court of Canada has stated in Hiemstra v. Hiemstra, 2006 SCC 37, the purpose and interest of retroactive child support is still intended to follow the regime of the Child Support Guidelines being that of support for the children.  Given this reasoning, it would appear that there would be nothing to prevent the executor or the eldest child from bringing an application for retroactive child support against the mother, so long as such an application was brought by either as a personal party to the matter, rather than through the father’s estate.

If you are looking for help with child support, the Lawyers at Mincher Koeman LLP have the experience and the knowledge to assist you.  Give us a call at 403-910-3000 or email us at reception@familylawyerab.com.

 

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