Johnson v. MacLellan Estate, 2007 ABQB 68

• Judge: McMahon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 07, 2006
• Citations: 2007 ABQB 68;(2007), 413 A.R. 238 (QB)

Johnson v. MacLellan Estate (2007), 413 A.R. 238 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. FE.049

Jamie Hope Johnson (applicant) v. Valinda MacLellan, as Personal Representative of the Estate of Joseph Randolph MacLellan (respondent)

(ES01 094572; 2007 ABQB 68)

Indexed As: Johnson v. MacLellan Estate

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

February 1, 2007.

Summary:

Married parents entered into a separation agreement that provided for child maintenance. The agreement contained an inurement clause binding the father's estate. A subsequent divorce judgment reproduced the agreement's child maintenance terms but did not specifically incorporate the inurement clause. The father died. The mother applied to enforce the child maintenance obligation against the father's estate.

The Alberta Court of Queen's Bench held that the estate was bound by the child maintenance obligation in the divorce judgment. The court also indicated that the separation agreement survived the divorce judgment as to the continuation of child maintenance.

Family Law - Topic 3298

Separation agreements, domestic contracts and marriage contracts - Termination of - Death - Effect of - Married parents entered into a separation agreement that provided for child maintenance - The agreement contained an inurement clause binding the father's estate - A subsequent divorce judgment reproduced the agreement's child maintenance terms but did not specifically incorporate the inurement clause - The father died - The mother applied to enforce the child maintenance obligation against the father's estate - At issue was whether the right to support under the separation agreement continued notwithstanding the divorce judgment and the father's death - The Alberta Court of Queen's Bench held that the separation agreement survived the divorce judgment as to the continuation of child maintenance - A divorce judgment superceded a separation agreement only to the extent that the judgment and the agreement dealt with the same topic - As the divorce judgment here contained nothing addressing whether the obligations continued after death, it did not override the separation agreement on that issue - See paragraphs 40 to 49.

Family Law - Topic 3301

Separation agreements, domestic contracts and marriage contracts - Termination of - Divorce - Effect of - [See Family Law - Topic 3298 ].

Family Law - Topic 4049.1

Divorce - Corollary relief - Maintenance - Enforcement - Effect of death of payor - Married parents entered into a separation agreement that provided for child maintenance - The agreement contained an inurement clause binding the father's estate - A subsequent divorce judgment reproduced the agreement's child maintenance terms but did not specifically incorporate the inurement clause - The father died - The mother applied to enforce the child maintenance obligation against the father's estate - At issue was whether the provisions for child maintenance in the divorce judgment survived the father's death - The Alberta Court of Queen's Bench held that the estate was bound by the child maintenance obligation in the divorce judgment - Unless the divorce judgment provided otherwise, there was no principled reason why a parent's estate should have any lesser obligation toward the children than the parent - This result brought consistency with Family Law Act provisions under which support orders and agreements bound a person's estate unless otherwise provided - The executor could apply to vary or rescind the order on the grounds that the father's death constituted a change in circumstances - See paragraphs 19 to 39.

Cases Noticed:

Lesser v. Lesser (1985), 14 R.F.L.(2d) 255 (H.C.), affd. (1985), 51 O.R.(2d) 100 (C.A.), refd to. [para. 13].

Chalmers v. Chalmers (1990), 111 A.R. 31; 29 R.F.L.(3d) 54 (Q.B.), consd. [para. 13].

Hayward v. Hayward Estate (1990), 88 Sask.R. 128 (U.F.C.), refd to. [para. 13].

Will v. Thauberger Estate (1991), 95 Sask.R. 52 (Q.B.), varied (1991), 97 Sask.R. 97; 12 W.A.C. 97 (C.A.), refd to. [para. 13].

Adams et al. v. Adams Estate (2001), 289 A.R. 345; 15 R.F.L.(5th) 237 (Q.B.), refd to. [para. 13].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297, refd to. [para. 13].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67, refd to. [para. 13].

Burns v. Burns (1981), 32 A.R. 367; 129 D.L.R.(3d) 178 (Q.B.), dist. [para. 17].

Myrden v. Myrden Estate (1990), 87 Nfld. & P.E.I.R. 69; 271 A.P.R. 69 (Nfld. T.D.), refd to. [para. 17].

Wilson v. Kosok (1996), 146 Sask.R. 105 (Q.B.), refd to. [para. 17].

Krusk (Litigation Guardian of) v. Krusk Estate, [1994] S.J. No. 293 (Q.B.), refd to. [para. 17].

Schwartz Estate v. Schwartz (1998), 52 O.T.C. 72; 36 R.F.L.(4th) 110 (Gen. Div.), refd to. [para. 17].

Sheppard Estate, Re (1969), 69 W.W.R.(N.S.) 153 (N.W.T. Terr. Ct.), refd to. [para. 25].

Horner v. Horner (2004), 191 O.A.C. 28; 245 D.L.R.(4th) 410 (C.A.), refd to. [para. 34].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [para. 35].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 35].

McLeod v. McLeod (2006), 406 A.R. 128; 2006 ABQB 927, refd to. [para. 47].

Counsel:

Theresa L. Wilson, for the applicant;

Sander van der Wissel, for the respondent.

This application was heard on December 7, 2006, by McMahon, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on February 1, 2007.