“The children of the marriage were born on February 22, 1970 and March 8, 1972. They ceased to be children of the marriage when they completed their post secondary education in April 1997 and June 1998. The motion, which was brought only under the Divorce Act, sought “by Motion to Change a lump sum payment of at least $275,000.00 for retroactive adult child support and child support”. In the alternative the motion sought “by Motion to Change, periodic monthly child support in accordance with the 2011 Child Support Guidelines” for at least $194,670.20 in principle and pre-judgment interest.
The motion judge disposed of the motion by resorting to rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99, which allows the court to decide a question of law before trial if deciding the question may dispose of all or part of the case. The motion judge decided that under s. 17 of the Divorce Act, an application cannot be brought to claim or vary a support order against a decedent’s estate if the original order is silent on whether that order binds the estate.
In reaching this conclusion the motion judge relied on this court’s decision in Katz v. Katz, 2014 ONCA 606, in which the court said at para. 72:
[I]t has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary.
We do not accept the appellant’s submission that this statement does not apply because the application related strictly to the payor’s lifetime on a retroactive basis. As the court in Katz observed, the Divorce Act does not contain a provision similar to s. 34(4) of the Family Law Act, R.S.O. 1990, c. F.3, which stipulates that an order for support binds the estate of the person having the support obligation. Yet, this application was brought against the trustee of the payor’s estate, as it had to be because no legal proceeding could be brought against the deceased payor. As there was no order binding the estate, there was no subsisting order that could be varied to bind the estate. The appellant did not make a claim for alleged arrears of support that arose during the life of the payor, as she might still, her application sought only an application to vary the 1978 order. Nor does anything in these reasons prevent her from seeking relief under the Family Law Act, if available.
The motion judge correctly decided that an application under s. 17(1) of the Divorce Act to retroactively change child support cannot be brought after the death of the payor. The appeal is dismissed. Costs are fixed in favour of the respondent in the amount of $3000.00 all-inclusive.”