Courts have held that parties cannot unilaterally decide to leave the workforce, retire, and then seek to reduce their spousal support obligations. Judges will ensure that a payor’s retirement is not aimed at avoiding the support payment. Sometimes, a long-term support payor may develop health or medical issues that challenge continued full-time employment. Once they approach retirement age, any health problems may factor into a decision to retire.
Do courts view retirement on medical grounds as a voluntary choice, or is it grounds for a payor to revisit their support obligation?
Walts v. Walts involved a motion brought by the applicant seeking his spousal support obligation to terminate upon retirement. The respondent sought to dismiss the motion because there was no material change in circumstances since the original order allowed for a variation of support. Willick v. Willick set out the test for a variation through a material change in circumstances, explaining that this had to be a change “that, if known at the time, would likely have resulted in different terms.” Consequently, a material change cannot be reasonably foreseeable. The respondent cited Bullock v. Bullock. In that case, the payor’s husband retired at age 62, and the question was whether it constituted a material change that would give rise to a variation of spousal support. The case highlighted the husband’s retirement as a personal choice when he still could earn an income. The court held that voluntary retirement is not a basis for finding a material change in circumstances and that a support payor cannot choose to be underemployed and avoid their support obligations. In this instance, the applicant was retiring at the age of 55 and was seeking variation six years after the parties separated. Although he tried to link his retirement decision to health concerns, this was unconvincing. For the judge, there was a lack of evidence that he could not work or was forced to retire. And the claim that he faced stress in the workplace was too vague. Ultimately, he was found to be retiring voluntarily.
In Crossley-Chaumont v. Royer, the husband pointed to a number of physical ailments that interfered with his employment and influenced his decision to retire. He submitted letters from two doctors that supported his health concerns and which supported his statement that he had been advised that he should not be working. The husband claimed that his eventual retirement and deteriorating health were material changes that should merit the termination of his support obligation. Variation of spousal support is governed by section 17 of the Divorce Act. The Act provides that before a court can make a variation order, it must be satisfied that “a change in the condition, means, needs or other circumstances of either former spouse has occurred since the spousal support order.” Under section 17(7), an order varying spousal support should also:
- recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
- apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
In L.M.P. v. L.S., the court explained that no objective carries greater weight or importance than another.
In this case, the husband asserted two material changes: his retirement and deteriorating health, and the wife becoming economically self-sufficient. Although the husband retired from one job, he found other employment that paid a similar income. This could not constitute a material change as it would not have resulted in different terms at the time of the original support order. Additionally, the husband’s evidence about his health did not make any connection between his physical ailments and his inability to work. His doctors’ medical opinions indicated that a physical job would be a problem. Still, there was no evidence about the husband’s current job or the required physical activity. Since he had been able to maintain that employment, it did not constitute a material change.
Even in cases where the evidence establishes a payor has health issues, retirement may still be deemed voluntary. In Bendall v. Bendall, the applicant wished to terminate support and claimed that there was a material change in circumstances arising from his retirement and his injuries from a motor vehicle accident. He also argued that he had paid support for 25 years when the marriage lasted 14 or 15 years, which was enough time for the respondent to become self-sufficient, and therefore, that spousal support should cease. In contrast, the respondent claimed there was no material change as the applicant’s decision to retire was voluntary and done without considering his obligation to pay support. She also claimed that the original order contemplated that support would be payable indefinitely and that she needed support.
Previous courts reviewing whether retirement constituted a material change had found that whether the payor considered the financial impact on the recipient spouse was a factor that could be considered. According to Innes v. Innes, courts could look at the motivation for retirement and assess whether it is reasonable in the context of the payor’s support obligations. In this case, Justice Raikes stated, “There is no general rule that paying spouses must work to age 65. Likewise, a retirement after the paying spouse becomes eligible to retire with a full pension does not automatically constitute a material change,” leading to a termination of support. The judge determined that the applicant’s retirement was voluntary. While health difficulties stemming from his motor vehicle accident and ongoing pain contributed to the decision, his health did not necessitate retirement. Additionally, his retirement was not done to reduce his support to the respondent. He continued working for four years after qualifying for a full pension and was not retiring immediately. The applicant’s retirement and reduced income constituted a material change in these circumstances.
Any variation must reflect the objectives in section 17(7) of the Act when a material change is present. Here, the applicant’s physical health was impaired, but the evidence did not show that he was incapable of working at all. Rather, the applicant alleged that enough time had passed for the respondent to become self-sufficient. Further, he suggested that any economic disadvantage to her from her role in the marriage and the marriage breakdown had been remedied through twenty years of spousal support. The judge accepted this argument, finding that the respondent’s inability to become economically self-sufficient was not due to the marriage but that she worked manual labour jobs and suffered injuries. Apart from those injuries, she may have been able to work full time. Though the respondent has an ongoing need, Justice Raikes found that the applicant should not be responsible for filling that need when it arose from her post-separation injuries. The applicant’s retirement reduced his income, and “he should be entitled to plan and live on the fruits of his past labour.”
Courts will not automatically accept that a support payor retiring for medical reasons is entitled to a variation of support. Often, an early retirement is seen as a voluntary choice. Even if there is some supporting evidence that the payor faces medical issues, this may not mean the party cannot work. But courts will look at the motivation for retirement and assess whether it is reasonable in the context of the support obligation.
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