Does Spousal Support End Upon the Retirement of the Payor Spouse?

Mark Feigenbaum

A recent Ontario case considered whether spousal support payments to the wife should end after the husband retired.

What Happened?

In 1991, the husband and wife separated after over 21 years of marriage and divorced two years later.  

During the 28 years following their separation, the husband had paid spousal support to the wife. Over the last 14 years, the husband had paid spousal support to the wife pursuant to the terms of the final order dated July 7, 2005. That order had set out that the husband had to pay 33.3% of all income as well as 33.3% of any tax benefits from his early retirement from his previous career. The order also stated that the terms could not be varied by either party except in the event of “a catastrophic change of circumstances”.

At the time of separation, both parties were 43 years of age.  The wife retired in 2015 when she was 68 years old.  It was the husband’s intention to retire at the end of 2019 at the age of 72.

As a result, the husband brought a motion seeking to end his obligation to pay spousal support.

The wife contested the husband’s motion and brought her own cross-motion seeking an order increasing the spousal support payable by the husband to $2,000 per month, to be secured through a $100,000 life insurance policy.

At the time the motions were heard, the husband and wife were both nearly 72 years old. Both parties agreed that there had been a catastrophic change of circumstances.

Decision

The court stated that under s. 17(7) of the Divorce Act, the following considerations should be taken into account when the court is asked to vary (or terminate) spousal support:

(a)      any economic advantages or disadvantages to the former spouse arising from the marriage or its breakdown;

(b)      any financial consequences to be apportioned between the former spouses arising from the care of any child of the marriage over and above any obligation for the support of such child; 

(c)      any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d)     insofar as practicable, the promotion of the economic self-sufficiency of each former spouse within a reasonable period of time.

The court noted that none of the individual considerations set out in s. 17(7) should be given priority over the other when determining the (continued) right to spousal support. Additionally, the court explained that the ultimate goal of spousal support is to alleviate a disadvantage to a spouse’s economic losses as completely as possible taking into account all of the circumstances of the parties, including the advantages conferred on the other spouse during the marriage.

The court further stated that the obligation to pay spousal support is not one made in perpetuity unless explicitly agreed to by the parties or ordered by the court. In this case, the court noted that there was nothing in the previous court order requiring the husband to pay the wife spousal support for the duration of her life. 

After reviewing the circumstances of the parties, the court concluded:

“Once [the husband] retires at the end of this year, he will essentially have his pension income and CPP. In my view, given that the [husband]’s sole post-retirement asset will be his pension, I do not find the presence of any economic hardship that would warrant a continuation of spousal support. Neither party has any dependents. The [wife] is at liberty to draw upon the equity in, or sell, her home with a view to investing and/or living off those proceeds.  She chooses not to, but her choice should not amount to an anchor dragging the [husband] further downward.  

Simply put, I agree with the [husband] that the time has come to terminate his spousal support obligations.” 

As a result, the court ordered spousal support to terminate in 2020.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.