



COURT OF APPEAL FOR ONTARIO

CITATION: Blacklock v. Tkacz, 2021 ONCA 630

DATE: 20210920

DOCKET:
C69095

Juriansz, Lauwers and Sossin JJ.A.

BETWEEN

Ulana Blacklock, formerly Olga Tkacz

Applicant

(Appellant)

and

Theodosius Tkacz, deceased, by his Estate
    Trustee, Joel Ross Huber

Respondent

(Respondent)

Mervin L. Riddell, for the appellant

William R. Clayton, for the respondent

Heard: August 30, 2021 by video conference

On appeal from the order of Justice Timothy G. Price  of
    the Superior Court of Justice, dated January 25, 2021.

REASONS FOR DECISION

[1]

The appellant appeals the dismissal of her motion, brought against the
    trustee of the estate of her deceased ex-husband, for retroactive child support
    payments for their two children. The deceased died on March 14, 2019. The
    motion to change was filed October 4, 2019.

[2]

The appellant and her deceased ex-husband were married in 1969 and
    separated in 1973. In 1978, the Supreme Court of Ontario in a proceeding under
    the
Divorce Act
, granted the appellant a Decree Nisi. The Decree Nisi
    granted the appellant custody of the two children of the marriage and ordered
    the deceased to pay $20 of child support per week for each child. The Decree
    Nisi did not provide that the child support obligation would be binding on the
    deceaseds estate.

[3]

The children of the marriage were born on February 22, 1970 and March 8,
    1972. They ceased to be children of the marriage when they completed their post
    secondary education in April 1997 and June 1998. The motion, which was brought
    only under the
Divorce Act
, sought by Motion to Change a lump sum
    payment of at least $275,000.00 for retroactive adult child support and child
    support. In the alternative the motion sought by Motion to Change, periodic
    monthly child support in accordance with the 2011 Child Support Guidelines for
    at least $194,670.20 in principle and pre-judgment interest.

[4]

The motion judge disposed of the motion by resorting to rule 16(12)(a)
    of the
Family Law Rules
, O. Reg. 114/99, which allows the court to
    decide a question of law before trial if deciding the question may dispose of all
    or part of the case. The motion judge decided that under s. 17 of the
Divorce
    Act
, an application cannot be brought to claim or vary a support order
    against a decedents estate if the original order is silent on whether that
    order binds the estate.

[5]

In reaching this conclusion the motion judge relied on this courts
    decision in
Katz v. Katz
, 2014 ONCA 606, in which the court said at
    para. 72:

[I]t has long been held that a support or maintenance
    obligation under divorce legislation ends when the payor dies unless there is a
    specific agreement to the contrary.

[6]

We do not accept the appellants submission that this statement does not
    apply because the application related strictly to the payor's lifetime on a
    retroactive basis. As the court in
Katz
observed, the
Divorce Act
does not contain a provision similar to s. 34(4) of the
Family Law Act
, R.S.O.
    1990, c. F.3, which stipulates that a
n
    order for support binds the estate of the person having the support obligation.
    Yet, this
application was brought against the trustee of the payors
    estate, as it had to be because no legal proceeding could be brought against
    the deceased payor.
As there was no order
    binding the estate, there was no subsisting order that could be varied to bind
    the estate. The appellant did not make a claim for
alleged arrears of
    support that arose during the life of the payor, as she might still, her
    application sought only an application to vary the 1978 order. Nor does
    anything in these reasons prevent her from seeking relief under the
Family
    Law Act
, if available.

[7]

The motion judge correctly decided that an application under s. 17(1) of
    the
Divorce Act
to retroactively change child support cannot be
    brought after the death of the payor. The appeal is dismissed. Costs are fixed
    in favour of the respondent in the amount of $3000.00 all-inclusive.

R.G. Juriansz
    J.A.

P. Lauwers J.A.

L. Sossin J.A.


