How To Get Child Support from the Dead

Aside from death and taxes, there are few guarantees. Thankfully, at least for the most part, your obligation to pay taxes stops after you die.

But, dying won’t get you out of support payments.

Child Support Belongs to the Child

Child support is a right that belongs to the child. A paying parent’s obligation to pay support in accordance with the Federal Child Support Guidelines exists in life. And, as many are surprised to learn, there is a requirement to ensure that the child is provided for after the parent’s death.

In Saskatchewan, the governing legislation is the The Dependants’ Relief Act, 1996, SS 1996, c D-25.01. Section 3 of that act reads:

[3] Where a person dies leaving a dependant or dependants, any dependant or person acting on behalf of a dependant may apply to the court for an order to provide reasonable maintenance for the dependant.

As noted by Manitoba’s Court of Appeal in McAuley v Genaille, 2017 MBCA 69, the same or comparable language is currently used in Alberta, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut.

It is not always clear what the phrase “reasonable maintenance” means. The Supreme Court of Canada has offered some guidance, and Saskatchewan’s Queen’s Bench in Ostrander v Kimble Estate, 1996 CanLII 6978 (SK QB), [1996] 8 WWR 336 has summarized it as follows:

[34] In summary, following Tataryn the phrase “reasonable provision” can no longer be defined as that “which would permit the dependant to maintain the standard of living enjoyed during the lifetime of the testator” as suggested in Shaw, Murray and Serdula but is to be determined having regard to the testator’s legal and moral obligations to the dependants and others within the context of a need maintenance approach and the provisions of s. 9 of the Act. A more generous award may result.

In other words, there are both legal, as well as moral, obligations. The legal obligation is based upon child support legislation and the common-law. Moral obligations are more difficult to understand, but they could require paying even more than the Federal Child Support Guidelines amount.

Legal Obligations

If you are receiving child support, and the other parent dies without providing the child “reasonable maintenance” in their Last Will and Testament, then you may be able to collect child support from their estate. This amount may be based on a monthly amount of support, calculated until the child turns eighteen years old.

Notably, in making a claim for child support under the Dependant’s Relief Act, courts have been willing to attribute a yearly raise in salary. Courts have also been willing to deduct CPP death benefits received by the recipient parent.

Moral Obligation

The estate may have to fork over additional money to satisfy the deceased parent’s “moral” obligation to their child.

It’s not easy to understand what a “moral” obligation is. The concept is fuzzy, and is determined on a case-by-case basis.

Nonetheless, our court has held that moral obligations include post-secondary education funding (Hiebert v Ward (1980), 1980 CanLII 2021 (SK QB), 3 Sask R 255 (Sask QB)). It may also include funding for extracurricular activities and medical expenses (Stone v Rybroek, 2010 SKQB 155).

Adams v Schmidt, 2016 SKQB 401

For a recent decision on the subject, you may want to read the case of Adams v Schmidt, 2016 SKQB 401.

In Adams v Schmidt, a mother was receiving child support from her ex-husband. Within three years of separating, the father died of lung cancer. At the time, their son was ten years old.

The father’s estate was valued at approximately $175,000.00. This included the appraised value of his home. In his Last Will and Testament, the father left his son $20,000.00. Notably, this money was only accessible on the child’s twenty-first birthday. Aside from some personal artifacts, no other provisions were made to support the son.

The mother claimed against the estate under The Dependent’s Relief Act. Based upon the Federal Child Support Guidelines, as well as the father’s historic earning potential, the estate was made to pay $44,000.00. However, the $44,000.00 only satisfied the father’s legal obligations.

In addition, the estate was ordered to leave the original $20,000.00 to the son. This satisfied the father’s moral obligations.

What This All Means

If you’ve been receiving child support but the paying parent has passed away, then you should see a lawyer right away. You may be able to preserve a child’s right to collect the support they are owed – even if the other parent has passed on.

This article is of a general nature only. It is based upon laws and policies in effect as of the date published, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.