When death doesn’t end your obligations to your ex.
When awarding spousal support under the Divorce Act, the judge is obliged to take into account the “condition, means, needs and other circumstances” of each spouse and is directed to consider the economic advantages or disadvantages that arise from the marriage or its breakdown, and the relief of economic hardship arising from the marriage breakdown. Inherent in the Act is the assumption that spousal support ends when the support recipient dies.
This has been thought to be “good law,” even when spousal support was ordered to be paid by a lump sum and not on a monthly basis, as is usually the case. Thirtythree years ago, the British Columbia Court of Appeal in Hampton v. Hampton gave short shrift to the application by the deceased wife’s estate, which sought to make the former husband pay the lump sum spousal support owing to the wife.
The Court of Appeal held that “the right to maintenance ( spousal support) is a personal right to be enforced by the wife during her lifetime. Maintenance is provided to satisfy the needs of the wife while she is alive. There is no further need for it after she is dead. The right of the wife to maintenance does not survive her death and does not pass to her personal representatives (her estate).”
The 2017 case of Stevenson et al v. Farago, decided by the Saskatchewan Queen’s Bench accepted Hampton, even though in Farago, the judgment required the husband to pay monthly spousal support to the wife and lump sum spousal support to a law firm ( doubtless in order to ensure the legal fees owing by the wife were paid). The wife died before the first lump sum payment was due to the law firm, and the law firm attempted to enforce the payments it was owed.
Justice Mills showed little patience with the law firm’s application, saying: “The obligation to pay spousal support is ended when the beneficiary of that support dies. The concept is just basic common sense.... There appears to be no juristic or moral reason to continue the obligation in the absence of any need.” The law was clear. Or that was the case until Justice Doug Mah of Alberta’s Court of Queen’s Bench decided Marasse Estate in November 2017. In Marasse, the couple was married for 14 years, and signed a separation agreement after the wife became ill. They divorced and some of the terms of their separation agreement were made part of a consent court order in the divorce proceeding.
The agreement and the court order required the husband to pay monthly support to the wife “on the first of each and every month for a period of 60 months (5 years) with the final payment occurring on Oct. 1, 2019, following which the husband’s obligation to pay spousal support to the wife shall cease, provided that the husband has made to the wife each of the payments set out herein.”
The separation agreement also stated, “entitlement, quantum, and duration of spousal support is non- reviewable and may not be varied on any material change of circumstances.” Finally, it contained the standard clause found in most separation agreements: “This agreement shall be binding upon and shall enure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors, designates and assigns.” To secure the wife’s payments, the husband agreed to carry life insurance, payable to the wife in the event he died before all the payments were made.
The wife died after the husband had made only eight payments. The wife’s estate sought to enforce the remaining payments.
The husband relied on the decisions in Hampton and Farago, saying that the whole premise underlying t he spousal support payments was the wife’s need. As she no longer had need, the husband said he should be relieved of his obligation. No doubt both he and his lawyer felt confident when they stepped into the courtroom in Fort McMurray.
Their confidence must have been short-lived.
In an unusual judgment, Justice Mah observed “the non- reviewability clause (forbids) variation of spousal support even where a change in circumstances is alleged. In this application, (the husband) is trying to achieve s ome t hing t hat he had agreed not to attempt.”
Justice Mah pointed out that had the wife lived and continued to demonstrate need beyond the five- year period, the agreement would have prevented her from collecting anything further. Alternatively, he said, if the wife had won the lottery the day after signing the agreement, the husband would still be obliged to make all 60 payments.
Justice Mah concluded by saying that the parties had turned their minds in the agreement to what would happen if the husband died before all payments were made, when he agreed to maintain life insurance to secure support in the event of his death. The agreement had also released all obligations against the other in the event of the death of either of them.
As they had turned their minds to possibility that either of them might die but had still entered into a “non-reviewable” agreement, Justice Mah found that the agreement was unambiguous: nothing in it suggested that the wife’s death ended the husband’s continuing obligation to pay support under the agreement.
Many separation agreements contain clauses saying that spousal support is “fixed and non- variable” or “nonreviewable.” Unless the agreement contains a clause that spousal support ends on the death of the recipient, Justice Mah’s decision is clear that a non- reviewable agreement means exactly what it says.