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When awarding spousal support under the Divorce Act, the judge is obliged to take into account the “condition, means, needs and other circumstances” of each spouse and is directed to consider the economic advantages or disadvantages that arise from the marriage or its breakdown, and the relief of economic hardship arising from the marriage breakdown. Inherent in the Act is the assumption that spousal support ends when the support recipient dies.

This has been thought to be “good law,” even when spousal support was ordered to be paid by a lump sum and not on a monthly basis, as is usually the case. Thirty-three years ago, the British Columbia Court of Appeal in Hampton v. Hampton gave short shrift to the application by the deceased wife’s estate, which sought to make the former husband pay the lump sum spousal support owing to the wife.

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The Court of Appeal held that “the right to maintenance (spousal support) is a personal right to be enforced by the wife during her lifetime. Maintenance is provided to satisfy the needs of the wife while she is alive. There is no further need for it after she is dead. The right of the wife to maintenance does not survive her death and does not pass to her personal representatives (her estate).”