Understanding Child Support Obligations After Death
What happens when a parent who was paying child support passes away — and leaves nothing for their children? Ontario law treats this situation carefully, but the outcome depends on the type of support order, the language used in the order or agreement, and whether the estate is bound by those obligations.
When a Parent Owing Child Support Dies and Leaves Nothing to Their Children
It’s a painful and confusing situation: a parent passes away while owing child support and leaves nothing for their children in the will. In Ontario, this isn’t just an emotional blow — it can also raise complex legal issues. Whether the children have rights against the deceased parent’s estate depends largely on what law the original support order was made under and how that order or any separation agreement was drafted.
The Law Behind It: Family Law Act vs. Divorce Act
Child support orders in Ontario can be made under two laws: the provincial Family Law Act (“FLA”) or the federal Divorce Act. While both laws aim to ensure that children are financially supported, they differ in what happens when the payor parent dies.
Under the Family Law Act, section 34(4) clearly states that a support order automatically binds the payor’s estate unless the order specifically says otherwise. This means that, by default, the deceased parent’s estate is still responsible for making child support payments. In other words, the death of the payor doesn’t necessarily end the obligation.
In contrast, the Divorce Act has no such provision. The Ontario Court of Appeal made this distinction clear in Katz v. Katz, 2014 ONCA 606. The court held that unless a Divorce Act order explicitly states that it binds the payor’s estate, the obligation to pay support ends upon death. This decision resolved earlier conflicting cases and confirmed that child support under the Divorce Act does not automatically continue after the payor’s death.
The court can, however, make an order under the Divorce Act that continues to bind the estate — but only if the order’s language clearly says so. Later cases, such as B.D.D. v. A.M.M., 2019 ONSC 6503 and Linton v. Linton, 1990 CanLII 2597 (ON CA), have reaffirmed this requirement.
A more recent case, Blacklock v. Tkacz, underscores this point: when a Divorce Act order is silent about whether it binds the estate, the obligation to pay ends with the payor’s death. The only amounts still recoverable are unpaid arrears that accumulated before the death.
What Happens if the Support Order Doesn’t Bind the Estate?
If a Divorce Act order is silent and the payor has died, the surviving parent or child generally cannot bring a motion to vary the order to add estate-binding language. Instead, their recourse is to bring a claim under the Succession Law Reform Act (“SLRA”) as a dependent of the deceased.
The SLRA allows certain dependents — including children — to seek financial support from a deceased person’s estate if the deceased was providing or was under a legal obligation to provide support immediately before death. To succeed, the claimant must prove both the relationship to the deceased and the existence of a legal or factual support obligation. Evidence such as bank statements, regular transfers, or a separation agreement can help establish that obligation.
However, these claims are not easy to win. Courts weigh multiple factors, including the nature of the relationship between the deceased and the claimant, the competing claims of other dependents or beneficiaries, and the fairness of the overall estate distribution.
Timing is also critical. A claim under the SLRA must be filed within six months from the date the court issues a Certificate of Appointment of Estate Trustee. If the estate has already been distributed by that point, it may be impossible to recover any assets already transferred.
The Role of Separation Agreements
Many separated or divorced parents choose to settle support obligations in a private agreement rather than through a court order. These agreements are legally binding, but what happens to them when one party dies depends on the wording.
Unless a separation agreement specifically states that a support obligation continues after death, the obligation may end when the payor dies. Similarly, a clause requiring the payor to maintain life insurance to secure ongoing support can make a significant difference — it can ensure that funds remain available for the child’s benefit even after the payor’s passing.
Some agreements also include a waiver of inheritance or estate rights under the Succession Law Reform Act. When properly drafted and witnessed, these waivers are enforceable and can prevent former spouses from later claiming against each other’s estates.
Contesting a Will When You’ve Been Left Out
In Ontario, parents are not required to leave their children anything in their will. However, if a parent was legally obligated to support a child and failed to do so, that child may have grounds to challenge the will or bring a dependent’s relief claim under the SLRA.
That said, these cases are complex and fact-dependent. Courts will consider the deceased’s mental capacity at the time of drafting the will, the relationship between the parties, the presence of other dependents, and whether the deceased made adequate provision for those financially reliant on them.
Frequently Asked Questions
Can child support continue after the payor’s death?
Yes — but only automatically if the order was made under the Family Law Act. Under the Divorce Act, the order must specifically state that it binds the estate.
What if the support order says nothing about the estate?
If the order is under the Divorce Act and silent, the obligation ends with the payor’s death. Any unpaid arrears can still be claimed, but future payments cannot. The child may need to pursue a claim under the Succession Law Reform Act instead.
Can a separation agreement make support continue after death?
Yes. If the agreement clearly states that support continues after the payor’s death, or if it requires life insurance to secure support, the estate may still be liable.
Can a child left out of a will contest it?
Potentially. If the deceased was providing support or was legally required to do so, the child can apply under the Succession Law Reform Act for support as a dependent — but must do so within six months of probate.
Is it easy to win this kind of case?
No. Courts look at many factors, including the size of the estate, the needs of other dependents, and the fairness of the overall distribution. Each case turns on its specific facts.
Have Questions About Child Support After a Parent’s Death? We’re Here to Protect Your Child’s Rights.
Navigating child support after the death of a parent is emotionally draining — and legally complex. Whether you’re unsure if support should continue, need to understand your rights under the Family Law Act, Divorce Act, or Succession Law Reform Act, or are considering a claim against an estate, Chapman Steffler LLP can help you make informed decisions with confidence. Our family law team provides clear, compassionate guidance and ensures your child’s financial interests are protected every step of the way.
Contact Chapman Steffler LLP today to book a confidential consultation and get tailored advice from lawyers who understand both family law and estate issues. Your child’s future deserves clarity — and strong legal support.
