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MAINTENANCE AND SUPPORT - Child support - Spousal support - Circumstances where order refused - Retroactive awards

Thursday, April 19, 2018 @ 8:36 AM  

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Application by the plaintiff Executor of the Stalzer Estate for retroactive child support and occupation rent. Cross-application by the defendant EA Stalzer for retroactive child support and retroactive and ongoing spousal support from the estate. F Stalzer and EA Stalzer began living together in 1988, married in 1990, and separated in 2006. Although F Stalzer filed a statement of claim for divorce and division of matrimonial property in October 2007, no divorce ever issued and matrimonial property had not been divided when F Stalzer died in August 2016. F Stalzer and EA Stalzer had three children, born in 1991, 1997, and 2001. After separation, all three children initially remained in the matrimonial home with their mother, EA Stalzer, but the oldest child moved in with her father, F Stalzer, in 2009. The middle child moved in with the father in 2010, and the youngest child moved in with him in 2014. The two younger children were still living with their father at the time of his death. F Stalzer initially paid child support without any court order, but he ceased paying support once all three children were living with him. The youngest child currently lived in her father’s home under the supervision of her father’s brother, the Executor of the Stalzer Estate. The Executor took the position that EA Stalzer ought to pay retroactive support for the years when the children were living with their father.

HELD: Application dismissed. Cross-application dismissed. A court could only make an order requiring “a spouse” to pay for the support of any children of the marriage. When a person died, they were no longer a spouse or former spouse. The estate was also not a spouse or former spouse. As a result, neither party could now bring an application for retroactive child support. The cross-application for spousal support also had to fail. A claim for spousal support was personal and could not be maintained after the death of one of the spouses, absent an agreement or order that specified it was binding upon the estate. There was a lack of evidence with respect to the occupation rent issue and the Court declined to exercise its discretion to order such rent.

Stalzer Estate v. Stalzer, [2018] A.J. No. 315, Alberta Court of Queen's Bench, D.C. Read J., March 14, 2018. Digest No. TLD-April162008007