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The Limitations Act (Family Law Act)

September 25, 2021

Ontario

,

Canada

Issue

What is the limitation period for claims against a deceased's estate for unpaid spousal support arrears?

Conclusion

Pursuant to s. 16(1)(b) of the Limitations Act, there is no limitation period in respect of proceedings to enforce an order of a court.

Section 34(4) of the Family Law Act provides that a support order is binding on the payor's estate, if no order to the contrary is made. (Family Law Act)

Courts have recognized that the obligation to make a support payment under the Family Law Act creates a debtor-creditor relationship. (Dagg v. Cameron Estate)

Depending on the terms and duration of the support order, the estate of a support payor may be liable for both past and future support obligations calculated in accordance with the support orders in place at the time of the payor’s death – that is, both any arrears of support payments and the present value of future support payments. (Dagg v. Cameron Estate)

In Cooney v Neave, the claimant sought payment of child support arrears, some of which dated back to almost 40 years ago, from the estate of her late ex-husband. The claimant deposed that she obtained a Court order requiring the deceased to pay child support in the amount of $25 per week, per child in 1976. In this case, where the previous Limitations Act applied, claims before 1983 were statute-barred.

No cases were identified that considered whether a claim for arrears of spousal support, owing pursuant to a court order, was statute-barred against the estate.

Law

Section 34(4) of the Family Law Act, RSO 1990, c F.3 provides:

34 [...]

Support order binds estate

(4) An order for support binds the estate of the person having the support obligation unless the order provides otherwise. R.S.O. 1990, c. F.3, s. 34 (4).

16(1)(b) of the Limitations Act, SO 2002, c 24, Sch B provides:

No limitation period

16 (1) There is no limitation period in respect of,

[...]

(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court;

[...]

In Dagg v. Cameron Estate, 2017 ONCA 366 (CanLII), the Ontario Court of Appeal consider where the estate of a support payor may be liable for support obligations under a court order:

[66] Courts have recognized that the obligation to make a support payment under the Divorce Act or the FLA creates a debtor-creditor relationship: Bukvic v. Bukvic (2007), 2007 CanLII 14323 (ON SC), 86 O.R. (3d) 297 (S.C.), at para. 79. As well, ss. 121(4) and 178(1)(b) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, recognize family support claims as debts provable as claims in bankruptcy.[1]

[67] Depending on the terms and duration of the support order, the estate of a support payor may be liable for both past and future support obligations calculated in accordance with the support orders in place at the time of the payor’s death – that is, both any arrears of support payments and the present value of future support payments. However, the legal basis for such claims by support recipients differs according to the act under which the support order is made.

[68] An order for child or spousal support made under the FLA binds the estate of the person having the support obligation, unless the order provides otherwise: s. 34(4). The personal representative of a support payor can apply to vary a support order: s. 37(1)(c).

In Cooney v Neave, 2016 ONSC 525 (CanLII), the claimant sought payment of child support arrears, some of which dated back to almost 40 years ago, from the estate of her late ex-husband. The claimant deposed that she obtained a Court order requiring the deceased to pay child support in the amount of $25 per week, per child in 1976. Mitrow J. noted that there is no limitation period in the current Limitations Act, SO 2002 in respect of proceedings to enforce a court order:

[47] The Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (“the current Act”) came into force effective January 1, 2004. There is no limitation period in the current Act in respect of proceedings to enforce an order of a court: s. 16(1)(b).

However, in this case, the claims from before 1983 were statute-barred pursuant to the previous Limitations Act:

[50] Ms. Neave submits that all periodic child support payments pursuant to the two court orders that were owing prior to January 1, 1984 are statute-barred pursuant to the previous Act. That date is 20 years prior to the effective date of the new Act.

[51] I agree with this submission. Accordingly, the arrears existing as at December 31, 1983 are unenforceable and need to be deducted from the total arrears claimed. The claimant took no issue with the method of calculation of arrears that are statute-barred as set out in Ms. Neave’s factum at paragraph 45:

a) arrears owing pursuant to the decree nisi, $75 per week from June 23, 1978 to December 31, 1983 – 288 weeks x $75 per week

In MacDonald v Estate of James Pouliot, 2017 ONSC 3629 (CanLII), the deceased died intestate, and he was survived by his common-law spouse of 22 years (the "Applicant") and his son. The Applicant brought an application for support payable by the estate under the Succession Law Reform Act. The son took the position that the Succession Law Reform Act application was barred by the six-month limitation period under that Act and the provisions of Section 9 of the Estates Administration Act. In the view of the Court, based on those authorities and the combination of that section and Section 61(2) of the Succession Law Reform Act, the applicant’s Succession Law Reform Act claim in this proceeding was barred as it relates to the only property of the estate that has already vested in the respondent Mr. Haney:

[31] The respondent states that the applicant’s claim for dependency support is barred by the six-month limitation period under that statute.

[32] Section 61(1) of the SLRA states that no application may be made against the estate after six months from the grant of letters of administration.

[33] Those letters were granted to the respondent on June 8, 2015. The applicant commenced this application on November 10, 2016, seventeen months after that date. Her claim would accordingly be barred unless the limitation period can be extended.

[34] Section 61(2) states that the Court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

[35] The applicant’s claim for dependency support payable by the estate are restricted to the house which is the only significant asset of the estate. There are no other assets of the estate.

[36] The respondent takes the position that the house in law effectively has been distributed to him and accordingly even if the limitation period was extended, no claim for dependency support is allowed with respect to the house as an estate asset.

[37] This is because of Section 9 of the Estates Administration Act R.S.O.1990 Chapter E.22. That section states that real property that has not been distributed among the persons beneficially entitled thereto by the personal representative within three years after the date of the death is at the expiration of that period, whether letters of administration have or not been taken thenceforth, vested in the persons beneficially entitled upon the intestacy. He submits that the property vested as a matter of law on September 10, 2016 in Mr. Haney, two months before this application was commenced and accordingly is no longer subject to the dependency support claim of the applicant. Re Dolan (1983) 1983 CanLII 1728 (ON SC), 43 O.R. (2d) 677. (Div. Ct.); Fray v. Evans, above.

[38] In my view, based on those authorities and the combination of that section and Section 61(2) of the SLRA, the applicant’s SLRA claim in this proceeding is barred as it relates to the only property of the estate that has already vested in the respondent Mr. Haney. That would include any claim for dependency support on a periodic or lump sum basis or to a claim for possession of the house for an extended period of time. The vesting of the property in the respondent’s name has been made subject to the unjust enrichment/constructive trust claim by the applicant as ordered by this Court, but that does not mean that it is subject to a barred SLRA dependency support claim of the applicant.

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