Lippolt Estate, Re, 2015 ABQB 118

JudgeGraesser, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateDecember 17, 2014
Citations2015 ABQB 118;(2015), 613 A.R. 75 (QB)

Lippolt Estate, Re (2015), 613 A.R. 75 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.089

Estate Name: Gordon Bryan Lippolt

Adele Margaret Lippolt (applicant/plaintiff) v. Estate of Gordon Bryan Lippolt (respondent/defendant)

(ES03 141230; 2015 ABQB 118)

Indexed As: Lippolt Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

February 9, 2015.

Summary:

The Lipplots (Adele and Gordon) entered into a separation agreement in 1979. Its provisions included spousal support ($500 per month) and an inurement provision that its terms "shall inure to the benefit of them, their heirs, executors, administrators, successors and assigns." The separation agreement was incorporated into the decree nisi. Girgulis, J., varied the decree nisi in 1985 ($1,000 per month spousal support "until further order"). Bielby, J., varied the decree nisi in 1995. By virtue of the 1995 order, Adele was awarded $15,000 in compensatory support, and the spousal support of $1,000 per month would continue past Adele's retirement and until she remarried or lived common-law. Adele retired in 2008. Gordon died in 2013. Adele applied for advice and directions, including a declaration that Gordon's estate was bound by the spousal support obligation. The estate's personal representative cross-applied for an order terminating spousal support.

The Alberta Court of Queen's Bench concluded that the obligation to pay $1,000 per month continued after Gordon's death and would continue until Adele's death, unless varied before then. The Court dismissed the personal representative's application, as there had been no material change in circumstances.

Family Law - Topic 3298

Separation agreements, domestic contracts and marriage contracts - Termination of - Death - Effect of - [See both Family Law - Topic 4009 ].

Family Law - Topic 4009

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of death of spouse - The separation agreement at issue, entered into in 1979, contained provisions regarding, inter alia, spousal support and an inurement provision - The agreement was incorporated into the decree nisi - Certain variations were made in 1985 and in 1995 - The payor died in 2013 - The Alberta Court of Queen's Bench found that the variation orders did not have the effect of limiting the duration of entitlement to support or of lessening the payor's or his estate's obligation to pay spousal support - "[T]he important considerations here are that the spousal support obligations in the Separation Agreement are not time limited. There is nothing in the Agreement suggesting that they should end during [the payee]'s lifetime or cease on [the payor]'s death. There is a clear inurement clause that applies to the entire agreement, indicating that the obligations under the agreement were intended to be binding on the parties' estates. ... [W]hat inures to the benefit of the parties and is binding on their estates in this case is the contracted-for obligation subject to the court's overriding power to vary the obligation. While the dollar amount of the obligation was varied, the court did not vary the nature of the obligation: spousal support. Nor did it vary the duration of the obligation. While 'until further court order' was inserted, there is nothing inconsistent between that provision and the inurement clause. ... Thus, it is the obligation to pay spousal support that survives [the payor]'s death, in whatever amount the court has ordered to that time, or whatever amount the court may order subsequently." - See paragraphs 92 to 115.

Family Law - Topic 4009

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of death of spouse - The separation agreement at issue, entered into in 1979 and incorporated into the decree nisi, contained provisions regarding spousal support and other matters - It also contained an inurement clause - Under the agreement, the payee's earnings were irrelevant so long as the child of the marriage was entitled to maintenance (ended some time ago) - The agreement was incorporated into the decree nisi - Certain variations were made in 1985 and in 1995 - Bielby, J.'s 1995 order awarded lump sum compensatory support, and recognized the continuation of spousal support past the payee's retirement as being partly compensatory - The payee retired in 2008 - The payor died in 2013 - The estate's personal representative applied to terminate spousal support - The Alberta Court of Queen's Bench held that there was no basis for a variation - "I do not accept the Personal Representative's argument that spousal support is only to be paid out of employment income or non-investment income. That is not and has never been the case. ... I do not accept that [the payor]'s death by itself was a change in circumstances. Where the spousal support obligation is binding on an estate, the death of the payor without more is not an uncontemplated event. The Separation Agreement and Decree Nisi already contemplate that contingency: [the payor]'s estate is bound because of the inurement clause. ... There has been no change in circumstances, as [the payee]'s needs and means are, by virtue of Bielby J.'s order, not relevant" - See paragraphs 117 to 134.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments or lump sum award - [See both Family Law - Topic 4009 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See both Family Law - Topic 4009 ].

Family Law - Topic 4049.1

Divorce - Corollary relief - Maintenance - Enforcement - Effect of death of payor - [See both Family Law - Topic 4009 ].

Cases Noticed:

Johnson v. MacLellan Estate (2007), 413 A.R. 238; 2007 ABQB 68, refd to. [para. 26].

McLeod v. McLeod (2013), 348 B.C.A.C. 182; 595 W.A.C. 182; 2013 BCCA 552, refd to. [para. 26].

James v. James, [2005] A.R. Uned. 383; 2005 ABQB 301, refd to. [para. 26].

Schwartz Estate v. Schwartz (1998), 52 O.T.C. 72; 36 R.F.L.(4th) 110 (Gen. Div.), refd to. [para. 30].

Finnie v. Rae (1977), 16 O.R.(2d) 54 (Ont. H.C.), refd to. [para. 30].

Ducharme v. Ducharme (1981), 6 Man.R.(2d) 367; 21 R.F.L.(2d) 309 (Q.B.), refd to. [para. 30].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 51].

Sheppard Estate, Re (1969), 69 W.W.R.(N.S.) 153 (N.W.T. Terr. Ct.), refd to. [para. 53].

Duplak v. Duplak and Balzar (1988), 54 Man.R.(2d) 70 (Q.B.), refd to. [para. 55].

Despot v. Despot Estate, [1992] B.C.T.C. Uned. 874; 42 R.F.L.(3d) 218 (S.C.), refd to. [para. 55].

Furber v. Furber, [1972] 1 W.W.R. 742 (B.C.S.C.), refd to. [para. 61].

Horne v. Roberts (1971), 4 W.W.R. 663 (B.C.S.C.), refd to. [para. 61].

Public Trustee of British Columbia (Price Estate) v. Price, [1990] 4 W.W.R. 52 (B.C. C.A.), refd to. [para. 62].

Miglin v. Miglin (2003), 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 72].

Bennett v. Canada Trust Co. (1960), 23 D.L.R.(2d) 492 (B.C.C.A.), refd to. [para. 91].

Whitelock v. Whitelock Estate, [1976] B.C.J. No. 7 (C.A.), refd to. [para. 91].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15, sect. 17(1), sect. 17 [para. 49].

Counsel:

Thomas Colquhoun, for the applicant, Adele Margaret Lippolt;

Michele Reeves, for the Personal Representative.

This application was heard on December 17, 2014, before Graesser, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons, dated at Edmonton, Alberta, on February 9, 2015.

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3 practice notes
  • Spousal Support on or After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...117 RSA 2000, c M-1. 118 Minaei v Brae Centre Ltd, [2004] AJ No 943 (QB). 119 2008 BCSC 1024; see also Lippolt v Lippolt Estate, 2015 ABQB 118; Hinds v Hinds, 2018 BCSC 128 at para 120 2007 BCCA 230. 121 Murphy v Murphy, [2002] NSJ No 180 (SC); see also KAP v KAMP, 2012 BCSC 811; Wiewiora v......
  • Spousal Support on or after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...clearly 115 RSA 2000, c M-1. 116 Minaei v Brae Centre Ltd, [2004] AJ No 943 (QB). 117 2008 BCSC 1024; see also Lippolt v Lippolt Estate, 2015 ABQB 118; Hinds v Hinds, 2018 BCSC 128 at para 118 2007 BCCA 230. 119 Murphy v Murphy, [2002] NSJ No 180 (SC); see also KAP v KAMP, 2012 BCSC 811; Wi......
  • Djuric v. Dellorusso, 2019 NSSC 95
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • March 15, 2019
    ...about which a variation order is silent are not regarded as having been adjudicated or resolved. [32] In Lippolt v Lippolt Estate, 2015 ABQB 118, the court held that a minor variation to an earlier order does not replace the earlier order. The court further held that it is inferred that the......
1 cases
  • Djuric v. Dellorusso, 2019 NSSC 95
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • March 15, 2019
    ...about which a variation order is silent are not regarded as having been adjudicated or resolved. [32] In Lippolt v Lippolt Estate, 2015 ABQB 118, the court held that a minor variation to an earlier order does not replace the earlier order. The court further held that it is inferred that the......
2 books & journal articles
  • Spousal Support on or After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...117 RSA 2000, c M-1. 118 Minaei v Brae Centre Ltd, [2004] AJ No 943 (QB). 119 2008 BCSC 1024; see also Lippolt v Lippolt Estate, 2015 ABQB 118; Hinds v Hinds, 2018 BCSC 128 at para 120 2007 BCCA 230. 121 Murphy v Murphy, [2002] NSJ No 180 (SC); see also KAP v KAMP, 2012 BCSC 811; Wiewiora v......
  • Spousal Support on or after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...clearly 115 RSA 2000, c M-1. 116 Minaei v Brae Centre Ltd, [2004] AJ No 943 (QB). 117 2008 BCSC 1024; see also Lippolt v Lippolt Estate, 2015 ABQB 118; Hinds v Hinds, 2018 BCSC 128 at para 118 2007 BCCA 230. 119 Murphy v Murphy, [2002] NSJ No 180 (SC); see also KAP v KAMP, 2012 BCSC 811; Wi......

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