Written on behalf of Feigenbaum Consulting
We had previously written about a case in which the court refused to end a husband’s spousal support because they did not believe he had actually retired.
In a recent Ontario Court of Appeal decision, the court did uphold the termination of spousal support following a husband’s retirement, finding that the retirement constituted a “material change”.
Husband Seeks to End Support Following Retirement
The husband and wife separated in 2012 following an approximately 25-year marriage which produced three children who are now adults.
In 2015, shortly before a scheduled trial, the couple settled the outstanding issues between them as set out in the consent order. The consent order equalized the parties’ assets and provided for the payment of non-term limited spousal support by the husband to the wife in the amount of $1,650 per month. Notably, the order provided that either party could seek a change in spousal support based on material change, whether the change was “foreseen or foreseeable, unforeseen or unforeseeable”.
The husband brought a motion to change in March 2017 on the basis that he intended to retire.
On December 31, 2017, at age 57, the husband retired with a full pension. The wife had retired from her public service position in May 2017 when she was 56 and eligible for a full pension.
Lower Court Terminates Support
The trial judge found that the husband’s retirement constituted a material change in circumstances. She set out the test as whether a change had occurred which, if known at the time of the last order, would have resulted in a different outcome. Having found a material change in circumstances, she then considered the means and needs of the parties pursuant to s. 17 of the Divorce Act. Given her assessment, she terminated the support obligation.
The wife appealed on several grounds.
First, the wife argued that the husband’s retirement was early, voluntary and unreasonable and could not therefore constitute a material change. She argued that the fact that the original consent order did not reference retirement should be taken to mean that it was specifically exempt from consideration as a material change. She emphasized that the husband had wanted a clause that specifically provided that his retirement would constitute a material change in circumstances. That clause was not agreed to and was not included in the order.
The wife further argued thatthe trial judge had erred in terminating support because five years of spousal support was insufficient compensation for her income (and thus pension) disadvantages that arose from their marriage. They had been married for over 25 years during which time the wife took maternity leaves and worked part-time. She stated that the trial judge erred in considering the net worth of the parties as part of the needs and means analysis.
Court of Appeal Upholds Termination of Support
The Court of Appeal rejected the wife’s grounds of appeal.
First, it found that trial judge had not erred in finding that the husband’s retirement constituted a material change, particularly in light of the consent order that provided that either party could request a review or change to spousal support in the event of a material change, whether “foreseen or foreseeable, unforeseen or unforeseeable”.
The court also did not find an error in the trial judge’s consideration of the parties’ assets and her finding that income from capital should be imputed to the wife. The court concluded that it had been relevant to an assessment of the relative incomes of the parties.
As a result, the court dismissed the wife’s appeal.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.