When a party to litigation between spouses passes away, a question can arise as to the status of litigation regarding ongoing child and spousal maintenance. In Crain v. Crain 1996 CarswellBC 1174, the Supreme Court dealt with the issue by finding that maintenance is a personal right that abates upon the death of either the party paying or the party receiving that maintenance. In other words, under normal circumstances, if one party dies, maintenance stops.
But what happens if one of the parties was pursuing an application to cancel or reduce arrears of maintenance? The court found (at para. 16) that an application to vary or cancel arrears, “… must be made by a spouse or former spouse and those terms do not extend to a corpse, an estate, or a personal representative.” Because of this, any application to change maintenance owing also abates upon the death of either party. Which means that if you intend on applying to varying or cancel arrears, it’s best to do it while you’re alive.