Maintenance on the Death of a Party

When a party to litigation between spouses passes away, a question can arise as to the status of litigation regarding ongoing child and spousal maintenance.  In Crain v. Crain 1996 CarswellBC 1174, the Supreme Court dealt with the issue by finding that maintenance is a personal right that abates upon the death of either the party paying or the party receiving that maintenance.  In other words, under normal circumstances, if one party dies, maintenance stops.

But what happens if one of the parties was pursuing an application to cancel or reduce arrears of maintenance?  The court found (at para. 16) that an application to vary or cancel arrears, “… must be made by a spouse or former spouse and those terms do not extend to a corpse, an estate, or a personal representative.”  Because of this, any application to change maintenance owing also abates upon the death of either party.  Which means that if you intend on applying to varying or cancel arrears, it’s best to do it while you’re alive.

Posted: November 19th, 2010 under Case Analysis, Child Support, Spousal Support, Uncategorized.
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Don’t Wait Too Long, Part II

There seems to be a spate of “retroactive child maintenance for adult children” cases coming out of the courts.  The seemingly immortal Hartshorne case is once more in the forefront, with the parties appearing before the  B.C. Court of Appeal and (hopefully) finally resolving all of the issues arising from their ill fated 1989 marriage agreement.  This case went up to the Supreme Court of Canada and then was sent back down to the Supreme Court of BC level to determine the issue of child support.  Orders were made which were then appealed again by Mr. Hartshorne to the B.C. Court of Appeal.  The interesting fact here is that Ms. Hartshorne, after years of having been buffeted from court to court, was trying to collect arrears of child maintenance for her eldest son.   She brought that claim on in 2007 when the child was 19 years old.   Mr. Hartshorne took the position that “the trial judge did not have jurisdiction to entertain the respondent’s application for retroactive and prospective support for the eldest child because the son was no longer a child of the marriage when the application was made in November 2007.” (at paragraph 67).  The court decided, however, that the 2007 application for arrears was simply a resurrection of an earlier action, and because of this stated,  ”I am not persuaded the trial judge lacked jurisdiction to hear the application for increased retroactive and prospective child support for the son even though he was over the age of majority at the time because the application was first made by the respondent when the son was still a child of the marriage.” [at paragraph 70]  The moral is that you should at least start any application for arrears before your child stops being defined as such by the Act.  Unless the Hartshornes appeal.

Posted: July 14th, 2010 under Case Analysis, Child Support.
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