Haas v. Payne Estate, (2015) 368 N.S.R.(2d) 262 (ProbCt)

• Judge: Moir, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: September 10, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 368 N.S.R.(2d) 262 (ProbCt);2015 NSSC 372

Haas v. Payne Estate (2015), 368 N.S.R.(2d) 262 (ProbCt);

    1160 A.P.R. 262

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.055

Martina Haas (applicant) v. The Estate of Alton Lee Payne (respondent)

(Hfx. No. 439154; Probate No. H61003; 2015 NSSC 372)

Indexed As: Haas v. Payne Estate

Nova Scotia Probate Court

Moir, J.

December 29, 2015.

Summary:

Mr. Payne and Ms. Hass married in 1990. They had one child born in 2000. They separated three and a half years later. Among other things, a separation agreement provided for Payne to pay spousal support. Payne died. Hass filed a claim in Probate Court as a creditor of her late husband. She said the estate was obliged to continue making the support payments.

The Nova Scotia Probate Court concluded that the text of clauses 53(a), 53(b), and 63 of the agreement expressly provided that spousal support was to be paid after Payne's death until 2018. That conclusion was reinforced when the text was read in context. The court granted an order that allowed Haas' claim in the amount of periodic payments now due plus interest. The order could declare that $4,395 came due on the seventh day of each subsequent month until and including July 7, 2018. The order could also declare that the future amounts could be capitalized, reduced, or extinguished by agreement or, if the estate established a contractual entitlement to seek variation by a judge, by order.

Family Law - Topic 3243

Separation agreements, domestic contracts and marriage contracts - Terms - Interpretation - [See second Family Law - Topic 3298 ].

Family Law - Topic 3298

Separation agreements, domestic contracts and marriage contracts - Termination of - Death - Effect of - The Nova Scotia Probate Court stated that "The state of the law in Nova Scotia on spousal support obligations surviving death is this. The Divorce Act does not authorize an award of monthly spousal support that survives death of the paying spouse. However, the parties may expressly or implicitly agree to survival, such as in a separation agreement" - See paragraph 26.

Family Law - Topic 3298

Separation agreements, domestic contracts and marriage contracts - Termination of - Death - Effect of - Mr. Payne and Ms. Hass married in 1990 - They had one child born in 2000 - They separated three and a half years later - A separation agreement provided for Payne to pay spousal support - Payne died - Hass filed a claim in Probate Court as a creditor of her late husband - She said the estate was obliged to continue making the support payments - The Nova Scotia Probate Court held that a clause binding a party's estate, such as clause 63 of the separation agreement, tended to indicate that the promises of spousal support survived death - That conclusion was clinched by clauses 53(a) and 53(b), which made Payne liable to pay spousal support until July 7, 2018 and not until his earlier death - That conclusion was reinforced when the text was read in context - The parties contemplated death as a possibility important to the future operation of the agreement - Although the separation agreement did not require it, Payne had maintained a $150,000 insurance policy for the benefit of Haas - The estate argued that this should be set off against the spousal support obligation - However, the agreement did not provide for such - The subject was, therefore, only relevant on a variation, assuming the separation agreement gave the estate a contractual right to seek variation by a court - The court granted an order that allowed Haas' claim in the amount of periodic payments now due plus interest - The order could declare that $4,395 came due on the seventh day of each subsequent month until and including July 7, 2018 - The order could also declare that the future amounts could be capitalized, reduced, or extinguished by agreement or, if the estate established a contractual entitlement to seek variation by a judge, by order.

Family Law - Topic 3375

Separation agreements, domestic contracts and marriage contracts - Variation - Of maintenance - [See second Family Law - Topic 3298 ].

Family Law - Topic 4009

Divorce - Corollary relief - Maintenance and awards - Death of spouse - Effect of - [See first Family Law - Topic 3298 ].

Cases Noticed:

Black v. Black (1981), 46 N.S.R.(2d) 361; 89 A.P.R. 361 (T.D.), consd [para. 18].

Carmichael v. Carmichael (1992), 115 N.S.R.(2d) 45; 314 A.P.R. 45; 43 R.F.L.(3d) 145 (C.A.), refd to. [para. 23].

McLeod v. McLeod (2013), 348 B.C.A.C. 182; 595 W.A.C. 182; 2013 BCCA 552, consd. [para. 24].

Brubacher v. Brubacher Estate (1997), 33 O.T.C. 241 (Gen. Div.), consd. [para. 25].

Counsel:

Sheree L. Conlon and Michael MacIsaac (Articled Clerk), for the applicant;

Julia E. Cornish, Q.C., and Jennifer M. Kooren, for the respondent.

This application was heard on September 10, 2015, in Halifax, N.S., before Moir, J., of the Nova Scotia Probate Court, who delivered the following decision on December 29, 2015.