Thomas C. Dart, Partner, Family Law.

If you are separated and have either a court order or separation agreement under which you have to make support payments to your ex-spouse, you may think that, once you retire, you won’t have to continue making your payments. Well the answer is, it depends….

 The law says you can change the support payments in a court order or agreement if there is a “material change in circumstances”. It also says you can’t get out of support obligations by making unreasonable decisions about your employment. If the court feels you are shirking your responsibilities by retiring, it will ‘impute income’ to you and then make an Order that you pay support based upon your ‘imputed income’.

 For example, in a reported case here in Ontario, a man who was married for 28 years entered into a separation agreement with his wife under which he was obliged to pay spousal support. Six years later, he decided to retire at age 55 as his pension plan allowed him to take full pension when he attained that age. He had had a heart attack and had told his wife before the separation that he planned to retire at age 55. The court held that it would not reduce the support payments at all as, in the court’s opinion, there was no valid reason to retire. The medical evidence did not support his claim that he had to retire for health reasons. The court was not going to let him off the hook after paying support for only six years after a 28 year marriage. The husband had he thought proactively brought the application to reduce the support before he attained the age of 55 in the hope that his support payments be reduced or stopped when he did actually retire. So when the Judge made his decision, the husband was at least able to keep working. In some respects he was ‘lucky’, although I doubt he would agree.

In another case, though, where a man applied after he had retired, the court held that it would not reduce the support as it did not think his retirement was reasonable and he was too young to retire. The court therefore ‘imputed income’ to him in the same amount as he was making before he retired, that is, although his retirement income was much lower, he still had to pay spousal support as if he were still working and making the same income.

So if you plan to retire, it might be a good idea to get legal advice on what might happen to your support payments.