I was asked an interesting question recently: “My ex-husband is currently in arrears for child support. If I were to pass away, can my estate collect those arrears, and if so, how can we update my estate planning to collect those arrears?”
This issue arose in Carpentier v British Columbia (Director of Family Maintenance Enforcement), 2017 BCSC 250 (“Carpentier”).
In Carpentier, the father was in arrears for approximately $45,000 at the time the mother passed away. The father argued that his obligation to pay child support ended upon the mother’s death. The father also argued that his obligation to pay child support arrears ended because the mother was no longer a creditor upon the mother’s death. The Director of the Family Maintenance Enforcement Program (“FMEP”) agreed with the father that the mother’s death brought an end to any ongoing obligation of the father to pay child support to the mother or her estate. However, FMEP also took the position that the mother’s death did not relieve the father of his obligation to pay child support arrears that had accumulated to the date of death, and so FMEP continued to take enforcement proceedings for those arrears.
The issue for the court was whether court-ordered child support arrears remain in effect after the creditor has died.
The court found that although the father’s obligation to pay future child support ended with the death of the mother, arrears which had accumulated to the date of death constituted a judgment debt for the amounts owing, and are collectible for the benefit of the mother’s estate. However, the court stated that in order to enforce the collection of the arrears, the personal representative for the estate must be formally added as a party to the family law proceedings.
So how can you ensure your estate collects child support arrears after you pass away?
The most prudent method would be to update your estate planning to ensure your Executor takes the appropriate steps to collect the arrears. This can be done by adding a clause to your Will in which you direct your Executor to take all necessary steps to collect all arrears owing, and specifically instruct him or her, as Executor of your Estate, to be formally added as a party to any family law proceedings instituted before the date of death.
In light of this decision, I would recommend that if you are enrolled with FMEP and your ex-spouse is in arrears of child support, you update your Will to ensure that your Executor is instructed to be added to your family law action upon your passing away.