By Douglas J. Manning, Partner, Certified Specialist in Family Law
As more and more “baby boomers” approach their retirement years and more spouses have separated or divorced, when compared with earlier generations, a question that may be asked with greater frequency could be: “If I retire, will my spousal support obligation to my former spouse terminate or at least decrease?” Of course, the same question from the other end could be asked by the support recipient: “If my former spouse retires while having a spousal support obligation to me, will the amount I receive be reduced or eliminated?”
The answer of course is: “It depends”.
A request to change or terminate a support order for divorced spouses is to be determined under section 17 of the Divorce Act which states:
Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order…and in making the variation order, the court shall take that change into consideration.
So, you might think that if a payor retires and their income is reduced, then their support obligation will decrease (or be eliminated). Not so fast! The caselaw that has evolved over the years interpreting this section of the legislation has added a few wrinkles.
The courts have said that if the change in circumstances (retirement and reduction in income) was known to the parties at the time of the making of the original order, then this change cannot be relied upon to justify a reduction in the support.
Also, another consideration is whether the retirement of the payor was voluntary or mandatory. In several cases the payor has decided to retire at 55, 56 or 57 years of age, and it was not a mandatory retirement. The payor sometimes argues that they had always planned on retiring at this age, even when still married, or they argue that the stress of their job is such that their health requires them to retire. In the absence of clear and compelling medical evidence that they are not capable of performing their job requirements, this argument will not likely succeed.
Also coming in to play in some cases are considerations of how long the marriage was, and how long since the original order was made the request to change the support is brought. For example, if spouses had been together 26 years and the existing support order has been in place for 3 years, and the spouse requesting the change is 58 years old because he/she has decided to “wind down”, then there is very little chance that the change in support will be granted by the court if it is a voluntary retirement situation.
The answer to this potential problem is to specify in the agreement that establishes the original support obligation, those circumstances, such as retirement, that would constitute a change in circumstances that would trigger a change in the amount of the support to be paid.