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An individual’s requirement to pay spousal support to their former partner can be an obligation that extends for a very long period of time. Spousal support is not an easy obligation to get away from, either. Even the loss of a job may not be enough to terminate the responsibility. Of course, there are instances where a change in spousal support is warranted. This was the case in a recent decision from the Ontario Superior Court of Justice.
The support order
The parties were married on June 26, 1967. They had two children while married, both of whom are now independent adults. They were divorced on September 11, 1995. Following the divorce the husband was ordered to pay spousal support in the amount of $3,000 per month. It was varied on August 20, 2015, with the monthly payment being lowered to $1,800 per month.
The husband was a lawyer. At the time of the application he was 76 years old, and had practiced law for 48 years.
The application to terminate support
The husband made the application to terminate support based on a material support in circumstances. This is allowed under Section 17 of the Divorce Act, which permits a support variation if there has been “a change in the conditions, means, needs or other circumstances of either former spouse since the making of the first order.”
The basis for his application was that in 2018 the husband began to suffer from dementia. This led to a decrease in his cognitive functioning, and his ultimate retirement from his practice. His financial statement, sworn on March 18, 2019, showed that he has minimal assets. He did not own a home. He had credit card debt of $40,000, owed his sister $50,000, and the CRA $441,000. In addition, his law practice had a line of credit which exceeded $187,000. His sole income at the time of the trial was $751 per month in CPP and OAS payments.
A material change?
The judge found that the husband’s financial situation was dire enough that he may have to consult a bankruptcy trustee. The court found that since the husband was no longer able to earn an income, and the income he received from CPP and OAS was not enough to satisfy his current spousal support obligations.
The court found the husband to have met the prima facie case for variation. In addition, he also had to come to the court with “clean hands,” meaning he had to take steps as quickly as he could to alert the courts about his need to make the application. The court found that he made the application as soon as he could once he found out he could no longer practice law.
The court ordered a temporary stay of spousal support while a permanent order could be worked out.
To speak with an experienced Windsor family law lawyer about divorce and/or spousal support, call Jason P. Howie at 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.
