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Can an Obligation to Pay Spousal Support Survive the Death of the Recipient Spouse?: Marasse Estate (Re)

2017 ABQB 706 (CanLII), http://canlii.ca/t/hnvf6:

The question, in this case, was whether the Estate of the Deceased was entitled to receive ongoing spousal support payments pursuant to an earlier entered separation agreement.

Background:

The defendant entered into a separation agreement with the Deceased a few months prior to her death.  The separation agreement settled all issues arising from their marriage, including spousal support.   Both parties to the agreement were aware that the Deceased had been ill for some time before the separation agreement was signed.

The separation agreement included a provision (para.6) that required the defendant to pay $3,000.00 per month in spousal support for 60 months.  It also stipulated (para. 8) that entitlement, quantum, and duration of spousal support is not reviewable.

The defendant’s obligation to pay spousal support was intended to survive his death guaranteed by way of a life insurance policy.

There were also provisions dealing with the disposition of property in the event that one of the parties predeceased the other.  However, the terms were silent on what should occur in the circumstances that gave rise to this action.

The separation agreement also included an enurement clause that made it binding on their respective heirs, executors, administrators, successors, assigns etc.

The Deceased died about 8 months after the separation agreement was signed at which time only 8 of the 60 spousal support payments had been made.  The action was brought by the Deceased’s daughter, in her capacity as the estate’s personal representative, seeking payment of the remaining spousal support.

The defendant took the position that the Deceased’s right to spousal support extinguished upon her death and that the very nature of spousal support means it is only payable during the recipient spouse’s lifetime.

Analysis:

Much of the defendant’s argument related to spousal support being a personal right, one that cannot pass on to the estate as well as corroborating case law in support of such argument.

Justice Mah did not agree and distinguished the supporting authorities on the basis that those cases referred to rights derived from an entitlement under a statute whereas these parties had a contractual agreement.

The defendant also sought to rely on the Court’s findings in Stevenson Hood Thornton Beaubier LLP v. Farago, 2017 SKQB 246 wherein it was stated:

. . . the obligation to pay spousal support ended when the beneficiary of that support dies.  The concept is just common sense.  Spousal support is used to maintain the payee spouse. The necessity of maintenance ends with the death of the payee. There appears to be no juristic or moral reasons to continue the obligation in the absence of any need.

Justice Mah also disagreed with those findings and stated that the separation agreement itself could form the basis of a juristic reason.

The juristic reasons, in this case, included:

  1. The enurement clause which confirmed that the respective right and obligations under the agreement will continue upon the death of either or both parties;
  2. the non-reviewability of the terms;
  3. the comprehensive nature of the agreement;
  4. the agreement’s silence on what would happen to the support payments upon the wife’s death;
  5. the agreement’s lack of reference to the payments being contingent on the deceased’s needs;
  6. lack of any ambiguity in the terms;
  7. the full and final nature of the agreement;
  8. the fact that the parties clearly turned their minds to the death of either of them on other provisions but made no reference to the payee’s death with respect to support payments; and,
  9. both parties’ awareness that the Deceased was ill at the time that the agreement was signed.

The Court went on to find that the separation agreement could not be set aside using the Miglin[1] test since it formed the full and final resolution of all issues. Both parties were represented by counsel and there was a clear intention that the Deceased was to receive the support payments.

Also relevant, there were no new circumstances that had not been considered by the parties at the time the separation agreement was signed.

Takeaway:

A separation agreement is a contract which has potentially long-standing consequences requiring careful consideration of intention at the time of drafting and execution, and review after the death of one of the parties.

[1] Miglin v. Miglin, [2003] 1 SCR 303, 2003 SCC 24 (CanLII), http://canlii.ca/t/1g5lh

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