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The obligation to pay spousal support is not always one that is easily accepted by the paying party. In fact, we’ve covered many situations in our blog where the paying party has tried to escape this obligation through means such as early retirement or underemployment. As a result, even if someone is legitimately expecting to retire, they still have to apply for a variation in spousal support if they wish to alter their payment amounts. The process of doing this was explained In a recent decision from the Ontario Superior Court of Justice.
The separation
The parties separated in 1991 after being married for over 21 years. By 2019 they had been divorced for about 26 years, and the husband had been paying spousal support as ordered. When they separated the parties were each 43 years-old, but by now were 72. The wife retired in 2015 while the husband was planning to retire at the end of 2019. As a result, the husband was seeking to end his spousal support obligations. However, the wife was seeking an order to increase the spousal support payable by the husband. The latest order regarding spousal support saw the husband paying 33.3% of all income as well as 33.3% of any tax benefits from his early retirement from his previous career (we was still working a variety of different jobs after retirement).
Factors to consider for a variation of spousal support
Section 17(7) of the Divorce Act outlines what factors should be considered when a variation of spousal support is requested. They are:
- any economic advantages or disadvantages to the former spouse arising from the marriage or its breakdown;
- any financial consequences to be apportioned between the former spouses arising from the care of any child of the marriage over and above any obligation for the support of such child;
- any economic hardship of the former spouses arising from the breakdown of the marriage; and
- insofar as practicable, the promotion of the economic self-sufficiency of each former spouse within a reasonable period of time.
The court noted that while there is not automatic time limit for spousal support payments, it is not intended to be paid forever unless explicitly provided for in an order or agreement. The court also considered that the wife had received the matrimonial home, now valued at over $1 million in exchange for her interest in the husband’s pension. The court noted she has an obligation to use this asset to produce income. While the wife said she would have no way to maintain the costs of the home without continued support, the court found there to be noting preventing her from selling or drawing from her equity in the home to provide for herself.
As a result, the court ordered the termination of spousal support effective December 2, 2020.
At Gelman & Associates, our experienced, knowledgeable, family law lawyers provide clients with the information they require to make educated decisions about spousal support. If necessary, we will also aggressively litigate on your behalf in order to ensure the best possible outcome of your case. In addition to the extensive web-based resources available to our clients, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process.
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