What Happens to Spousal Support If the Payor Dies in Ontario

If you receive spousal support, the death of the person paying it raises a hard question: does the money stop? You may also be wondering whether life insurance can protect you. These worries are common, particularly when support is your main income.

The answer depends on your order or agreement, your relationship to the person who died, and the law that applies to estates. This article covers what is generally known and points out where you will need your documents and a lawyer to confirm the details.

Start with the order or agreement

Spousal support can come from a court order or from an agreement. Couples can agree on support in a separation agreement, or a judge can decide. A Divorce Act order may be for a definite period, an indefinite period, or until a specified event happens, and the court may attach terms and conditions.

Indefinite support does not mean permanent support. It means no time limit could be set when the order was made, and the support remains subject to variation and review.

When setting support, a court considers each spouse's condition, means, needs and other circumstances, including how long the spouses cohabited, the roles each played, and any existing order, agreement or arrangement about support. Entitlement can be compensatory, non-compensatory (based on need), or contractual, and a contractual basis can come from a formal domestic contract or from an implied or informal agreement.

A court can vary, rescind or suspend a spousal support order on an application by either or both former spouses. Before it varies an order, it must be satisfied that either former spouse's circumstances have changed since the order or the last variation.

Whether your particular order or agreement continues after a payor's death, and whether it requires life insurance, depends on its wording. Read it closely and have a lawyer confirm what it means.

Claims against the estate

Someone who depended on the deceased can claim against the estate for support. This is a separate route from a married spouse's claim for an equalization payment.

The rules and time limits for a dependant's claim should be checked on the Ontario statutes before you rely on any date. Because estates are often distributed over time, speaking to a lawyer early is sensible.

Property claims are separate from support

Equalization of net family property is separate from support. The spouse with the larger net family property pays half the difference to the other. A court claim must be made within six years of separation or two years after the divorce is final, whichever comes first.

If the married spouse has died, a surviving spouse who wants an equalization payment must file and mail an Election of Surviving Spouse no later than six months after the death. Missing that date can affect your options, so note it as soon as possible.

Common-law partners may claim spousal support, but they are not legally required to split property acquired while living together. Property generally belongs to whoever bought it. If you were not married, your position on property differs from a married spouse's.

Payments that are already owing

Support orders in Ontario are automatically filed with the Family Responsibility Office (FRO), which collects payments from the payor and sends them to the recipient, but it does not pay when a payor misses a payment. Separation agreements are not filed automatically; the agreement must be filed with a court and then registered with FRO before FRO can enforce it.

FRO enforcement costs nothing for the spouse receiving support, and FRO usually deposits payments within 48 hours of receiving them. Its tools include support deduction orders sent to employers, bank garnishment, and diversion of federal payments such as tax refunds, EI, CPP and OAS. FRO cannot change support terms; only a court can change an order.

How those tools apply once a payor has died depends on the facts. If payments stop because of a death, contact FRO if your order is filed with it, and ask a lawyer about arrears and about how the estate should deal with them.

What to do next

• Locate your court order or separation agreement and check for any clause about death, life insurance or ending events.
• Find out whether the order is filed with FRO, or whether your agreement was filed and registered.
• If you were married, note the six-month date for the Election of Surviving Spouse.
• Ask a lawyer about a dependant's support claim against the estate, including any deadline.
• Keep records of payments received and any insurance policies you know about.

If you are a payor planning ahead, a lawyer can explain how a new agreement or order might deal with these issues.

Frequently asked questions