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What changes should be made to family law?

These proposals let family law lawyers discuss and vote on what changes they think should be made to the law or court procedures. The results can be viewed and shared with legislators and the Courts. The proposals put forth are written by member lawyers, and do not necessarily reflect the views of this website or its administrators. You can view more proposals or make a proposal yourself.

Proposal: Spousal support should always terminate upon death, to instead be considered as a Family Maintenance & Support Claim
Spousal Support - Aug 15th

85% in favour out of 13 votes

Ken Proudman - view Arbitrator profile
BARR LLP (Alberta. Joined 2017)

Spousal support orders end on the death of the payor, unless they specifically state that the support is binding on the debtor's estate. Lippolt v Lippolt Estate, 2015 ABQB 118 at para 92 held that a separation agreement setting out spousal support can bind the estate as long as there's an enurement clause though. Support might even still be payable if the recipient dies, which is absurd.

The issue is that if for example an agreement provides for spousal support of $3000 per month for 10 years, that's $360,000, which could be the entire estate, meaning that the former spouse could receive everything, even if there are dependent children from a new relationship.

Instead, they should be making a claim for Family Maintenance & Support against the estate. FMS claims look at the remaining property and try to find a way to fairly allocate it between all of the dependents. That way one dependent doesn't automatically get a leg up over the other dependents.

0 35 days ago - edited 35 days ago

David Miksha
Wells Family Law (Alberta. Joined 2018)

I see that proposal satisfying the Bracklow non-compensatory basis for Support. But regarding compensatory and contractual support, this would remove the remedy that a party bargained for. I also do not know of any fixed quantum and duration Support that would not also have some variation provisions. If Bracklow non-comp, needs-based Support was all that was recognized, I would say FMS would fill the void just fine.

0 31 days ago

Ken Proudman - view Arbitrator profile
BARR LLP (Alberta. Joined 2017)

Compensatory support isn't solely about economic disadvantages though, spousal support isn't a wage for housework, it's also about the payor unfairly retaining the economic advantages. So if the payor is dead, there's no longer any economic advantage that they're unfairly retaining, and if they've already divided property, then enforcing support against the estate is just double-dipping.

In relation to contractual support, if people really did intend that support would continue even if a spouse passed away, I would definitely support adhering to that intention. But I think that's generally not the case, or at least not a mutual intention. Usually contractual spousal support is just approximating what a court might order. If continued support after death was the intention, why not write that in the agreement?

0 31 days ago

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