Life Insurance as Security for Child Support in Ontario

If you receive or pay child support, a hard question sits in the background: what happens to the support if the paying parent dies? Children rely on that money for housing, food and school costs, and a death can leave a gap.

Ontario law gives courts a few ways to deal with this risk. Life insurance is one of them. This article explains what the court can order, what other protections exist, and what to raise early when support is being set.

When a court can require life insurance

When a court makes a support order, the Family Law Act allows it to require a parent who has life insurance to designate the other spouse or a child as beneficiary, irrevocably. Irrevocably means the paying parent cannot later change the beneficiary on their own.

The power is tied to a support order. The court looks at the facts of your case, so whether insurance is ordered, and for how much, depends on your situation. A lawyer can tell you how a judge might approach it.

The duty to support a child applies whether or not the parents were ever married. A support application can be brought by the child or by the child's parent.

Under the Family Law Act, a court making a child support order must do so in accordance with the child support guidelines. Under the Divorce Act, a court making a child support order must follow the applicable guidelines. How insurance fits alongside the support amount in your own case depends on your situation, so it is worth confirming with a lawyer.

The estate is also bound by a support order

Insurance is not the only protection. Under the Family Law Act, an order for support binds the estate of the person who owed the support, unless the order provides otherwise. That means the obligation does not simply disappear on death.

This rule is set by the Family Law Act. If your support order was made under the Divorce Act, the position on the estate is not settled by statute in the same way, so it is wise to get legal advice in that situation.

Claiming against the estate

A child the deceased was supporting, or was legally obliged to support, immediately before death counts as a dependant under the Succession Law Reform Act. If the deceased did not make adequate provision, the court may order support from the estate.

There is a strict time limit. An application must be made within six months from the grant of letters probate or administration. The court may allow a later application for any part of the estate that has not yet been distributed. Do not count on that exception; get advice quickly if a payor has died.

Ways to put the protection in writing

Many parents settle support by agreement. A separation agreement is unenforceable unless it is in writing, signed by the parties and witnessed. A party may file the agreement with the clerk of the Ontario Court of Justice or the Family Court of the Superior Court of Justice, with an affidavit (Form 26B). Once filed, the support provision can be enforced as if it were a court order, varied, or recalculated.

Be aware that a court deciding child support may disregard an agreement's child support provision if it is unreasonable having regard to the child support guidelines. Ask a lawyer how security such as insurance can be written into an agreement.

Orders can also change over time. Where there has been a change in circumstances under the guidelines, or new evidence is available, a court may discharge, vary or suspend child support. If your family situation changes, it is worth checking whether your order or agreement still fits.

What to do next

• Find out whether the paying parent has life insurance, and through whom (work or personal).
• Raise insurance and estate protection early, when support is first being set or reviewed.
• Keep copies of any order or agreement, and check whether it addresses death.
• If a payor has died, note the date of the grant of probate or administration, because the six-month clock runs from it.
• Get legal advice, especially if your order is under the Divorce Act.

Frequently asked questions