When Support Doesn’t End at Death: How Family Law can become Estate Litigation in Ontario

People often assume that when someone dies, their financial obligations die with them.

In Ontario, that is not always true. If someone was paying (or, was supposed to be paying) spousal support or child support before they died, those obligations can continue. The dispute just shifts from family court to estate litigation. These situations mainly arise after separation in blended families where support was never fully resolved before death.

The following are questions family law and estate litigation lawyers get asked when parties are faced with these situations:

The answer, of course, is “it depends”.

If there is a court Order or an executed separation agreement in play, the wording of such documents matter. Some agreements and Orders clearly state that support shall continue after death and binds the payor’s estate. Some other agreements are silent to this issue.

Even if there is no binding clause, Ontario law provides a powerful remedy which is found in Part V of the Succession Law Reform Act. Certain family members can ask the court for financial support from the deceased’s family if “adequate provision” was not made for them.

This is where estate law looks similar to family law.

A dependent’s support claim is found in the Succession Law Reform Act. It allows certain people to apply to the court for financial support from an estate.

Who qualifies for a dependent support claim? Examples include a married spouse, a common law spouse, a former spouse entitled to support, children (sometimes adult children), and other persons the deceased was supporting prior to their death.

The court looks at the following factors in both estate litigation and family law: the financial need, the deceased’s ability to pay, the standard of living during the relationship, the length of the relationship, and any agreements made between the parties.

In the Supreme Court of Canada case, Tataryn v Tataryn Estate [1994] 2 SCR 807, the Court confirmed that judges may consider both legal obligations and moral obligations when deciding what is “adequate”. The first consideration being the deceased’s legal obligations during their lifetime, and the second consideration being the deceased’s moral duties towards the spouse and/or children. In simpler words, a Will is not necessarily the final word if a dependent has been left without proper support.

It becomes a complex situation when spouses are separated but not divorced at the time of death of one of the parties.

In this case, the surviving spouse may have the following choices:

The right decision depends on the size and structure of the estate, the surviving spouse’s financial situation, and whether there are competing beneficiaries (for example, children from a prior relationship).

Child support does not automatically “disappear” when a parent dies. If a deceased parent had an existing obligation to pay support prior to their death, the estate may still be responsible.

The Ontario Court of Appeal in Katz v Katz 2014 ONCA 606 found that an Order for support made under the Family Law Act binds the estate of the person having the support obligation, unless the Order provides otherwise. However, if the support order is made under the Divorce Act, it will only bind the estate if it explicitly states that it does so.

In these situations, courts can order lump sum payments from the estate, ongoing payments funded by estate assets, or orders related to life insurance that was meant to secure support. If a separation agreement required life insurance and the deceased failed to maintain it, that failure can become a serious issue for the estate.

Financial support disputes after death are most common in second marriage situations.

For example: A parent remarries. Their Will leaves most, or all, of their assets to the adult children from their first marriage. The surviving spouse is left with limited income/assets. Even if the Will is legally valid, the surviving spouse may bring a dependent’s support claim, arguing that the estate has not made adequate provision, and may recover monies this way.

In Cummings v Cummings 2004 CanLII 9339 (ON CA), the Ontario Court of Appeal found that courts must take a broad and generous approach when determining dependent support claim amounts. The analysis is not only mathematical, but also found in the fairness and realities of the relationship of the parties, the moral and legal obligations.

Under the Succession Law Reform Act, a dependent’s claim typically must be brought within six months from the date the estate trustee is appointed by the court. If estate assets are distributed before a dependent’s claim is brought, recovery may become difficult, or impossible.

Many disputes like this can be avoided with better planning. For example, clearly drafted separation agreements that address what happens upon a party’s death, obtaining life insurance to secure any support obligations, updating your Will and beneficiary designations, or marriage contracts that clearly waive or preserve estate rights.

In Ontario, support obligations do not always end when someone dies. Instead, they shift from family law to estate litigation.

If you are facing a support dispute after the death of a spouse or former spouse, early advice is critical. Contact CHC Barristers estate litigation team to understand your rights and deadlines.