Couples may decide to separate or proceed with divorce for a number of reasons. However, even after the breakdown of a relationship, parties need to remember that the subsequent obligations can impact the parties for an extended period of time, such as spousal support. This obligation might not have a clearly defined end date, meaning that spousal support payments may be ongoing despite the paying party’s plans to retire. A recent decision from the Ontario Superior Court of Justice is an illustration of how the courts might respond to a request to reduce spousal support when retirement is on the horizon for the paying party.
Couple separate after 21 years of marriage
In David v. Davis, the husband and wife were married for 21 years and at the time of the trial, the wife was 66 years old while the husband was 57.
In a final order from Justice Cavarzan in May 2009, the respondent husband was ordered to pay the wife $1,800 per month in spousal support. The amount was fixed to the Consumer Price Index and had increased to $2,200 per month at the time of the trial.
Husband retires at 55
In August 2019, at age 55, the husband retired from his job with a utility company. The husband stated that his retirement was not voluntary but was necessitated by physical limitations he began to experience after years of physically demanding work. He had been earning an annual income of $99,961 at the time of his retirement, but his income was reduced to $30,345 once he began to draw on his employment pension. Shortly before his retirement, the husband contacted the Family Responsibility Office to advise of the impending reduction in his income for spousal support purposes. The husband brought a Motion to Change in February 2020 seeking termination of his spousal support obligations.
During the marriage, the wife had assumed a role working inside the home and was the primary caregiver for the parties’ children. She told the Court that she expected the husband to work until he was 65 years old. The wife argued that the husband’s retirement was voluntary and there had been no material change in circumstances, as this is a requirement for a variation of a support order. The wife also said the husband had unilaterally decided to terminate his support payments as soon as he retired without first receiving guidance from the Family Responsiblity Office.
Court applies two-part test support variation test
The Superior Court explained that a two-step process must be followed when considering a support variation. First, the court must determine whether the supporting conditions for a variation exist. Secondly, the court must ask whether the conditions amount to a “material” change which, if known at the time of separation, would have resulted in different terms. The second step is important because if a change of circumstances can be anticipated, it cannot later be used as a reason to vary support.
The Court went on to apply this test to the facts at hand. The husband’s evidence suggested that he had been doing physically demanding work for 30 years and had surgery on his knee in the 1980s. The husband also developed sciatica and was off on worker’s compensation for some time in the early 2000s. He subsequently developed issues with his clavicle bone and claimed that his doctor did not prescribe anything, however did recommend that he quit his job. Despite some work accommodations, the husband claimed that he “worked through the pain everyday” and wanted to stop “suffering”, stating that he would have continued to work if there was a way to do so without pain.
Should the husband’s spousal support obligations be terminated?
The husband told the Court that his income has dropped to $2,500 per month after his retirement, and that he rents a room in Toronto for $500 per month. The husband did not provide any medical evidence to support his claim. When he tried to introduce some medical information, the wife objected and the parties then faced a possible adjournment, therefore the husband decided to proceed without the medical evidence.
The wife told the Court that the husband was in good health at the time of their separation and that he used to pick up extra work shifts. She said that she did not know about many of the health issues that the husband described.
Superior Court satisfied that husband had material change in circumstances
The Court noted that medical evidence of health troubles, while desirable, is not always necessary. The Court referenced the 2017 decision of G.P.W. v. L.W., from New Brunswick which found that a party’s claims and description of their own health was enough to satisfy that the health conditions they claimed to be experiencing were real.
The Court also found that the husband’s claims were not undermined through cross-examination or by the wife’s testimony. The husband’s employer also provided a letter confirming that they believed that the husband had retired due to health concerns.
Having been satisfied the husband had experienced a material change of circumstances, the Court went on to ask whether that change should result in an adjustment or termination of his spousal support obligations. The Court noted that the husband had not complied with the final order when he unilaterally decided to stop paying spousal support after his retirement, however, the Court found that the husband’s spousal support payments should be reduced to reflect his post-retirement income. The Court ordered that the husband continue to pay spousal support in accordance with his new income resulting in a significantly lower monthly amount.
Contact the Divorce Lawyers at Howie Johnson Barristers & Solicitors for Assistance with Spousal Support Variations
The experienced family law lawyers at Howie Johnson Barristers & Solicitors in Windsor have over 25 years of experience assisting clients with a variety of family law matters, including spousal support disputes and financial disclosure. To schedule a confidential consultation with a member of our family law team, contact us online or by phone at 519-973-1500.