Z. Effect of Death

Author:Julien D. Payne - Marilyn A. Payne

Page 536

A variation order for child support may be declared binding on the estate of the obligor.380

The omission to include such a clause in the divorce judgment, where the separation agreement had so provided, may be sufficient to warrant a variation of the judgment to provide that the deceased parent’s estate shall be bound by the order.381The death of the child may constitute a material change in circumstances as required by subsection 17(4) of the Divorce Act to allow arrears to be remitted, insofar as they accrued after the child’s death. The purpose of support is to meet ongoing expenses. If the child is no longer alive, there can be no reason for child support to continue.382Section 55(1) of the Family Law Act (Alberta) provides that a child support order terminates on the adoption or death of the child except where the court orders otherwise. Pursuant to section 55(2) of the Act, the termination of a child support order does not affect any arrears owing under the order before it is terminated.383

[380] McKee v. McKee (1994), 153 A.R. 8 (Q.B.); Brickman v. Brickman (1987), 8 R.F.L. (3d) 318 (Man. Q.B.). And see Chapter 11, Section H.

[381] Duplak v. Duplak (1988), 54 Man. R. (2d) 70 (Q.B.); compare Despot v. Despot Estate (1992), 42 R.F.L. (3d) 218 (B.C.S.C.).

[382] King Estate v. King (1994), 8 R.F.L. (4th) 380 at 391 (N.B.Q.B.).

[383] Re S.N.L., [2005] A.J. No. 1845 (Q.B.).

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