After 30 years, it might be safe to assume that a divorce is well in the former couple’s rearview mirror. However, life is full of change, and those changes can sometimes have an impact on agreements made during a separation or divorce. This was demonstrated in a recent decision from the Court of Appeal for Ontario, in which the husband sought to alter a spousal support long after the couple’s divorce was finalized.

The couple’s history

The couple separated in 1985 following 17 years of marriage. During this time they had two children, who the mother stayed home with until they reached 12-years-old. When the children turned 12 they went to boarding school in London. It took six years but they agreed on minutes of settlement in 1991, and that agreement was reflected in their divorce judgment later that year.

While the parties were married the husband was employed as  a dentist and had been earning up to $300,000 per year up until his retirement. The minutes of settlement from 1991 contained a clause that stated the husband would pay $4,000 in spousal support “until (the wife) dies.”

The 2016 order

In 2016 the husband was considering retirement and was seeking to have his spousal support terminated effective July 12, 2016. The motion judge found that the husband’s upcoming retirement as well as the wife’s failure to have found employment since the divorce amounted in a “material change” and ordered the husband’s spousal support obligations to drop to $1 per month.

The wife appealed this decision, arguing that there was not a material change in circumstances, and that even if there were, the parties had made an agreement which clearly stipulated that support would be paid in the amount of $4,000 per month as long as she lived.

The threshold of a material change in circumstances

The motion judge had found there to be two material changes in circumstances. The most significant, according to the motion judge, was the wife’s decision not seek employment following the divorce. The motion judge had stated that while the wife did not have an obligation to find work there was an “obligation on her as a spousal support recipient to make reasonable efforts to contribute to her own support.” The second material change in circumstances was the husband’s retirement and corresponding decrease in his annual income.

The court disagreed that the wife’s failure to seek employment constituted a material change in circumstances. The referenced the minutes of settlement, which clearly stated she was to receive spousal support for the rest of her life. As such, she was entitled to rely on that money. In fact, the court found the husband had waited too long to bring this up as an issue.

The court did agree with the motion judge’s decision that the husband’s decrease in income was a material change in circumstance. The court recognized that the minutes of settlement were clear, but added “while the agreement specified support for life for the (wife), it also expressly contemplated a salary level far exceeding what the (husband) will receive in retirement.”

Determining how to adjust the amount of support

The court was faced with a slightly tricky scenario. The 1991 agreement was made before the Spousal Support Advisory Guidelines came into effect. That said, they can still provide some guidance in determining what would be appropriate. The court found that the $4,000 monthly amount of spousal support was less than the husband would have been required to pay today. However, the agreement also provided that the support payments continue as long as the wife was alive, which makes up for the lower monthly payment. $4,000 per month is about two-thirds of what the husband would have been required to pay under the Guidelines. The court followed this formula in determining how much the husband should pay following his retirement, and arrived at $850 per month for life.

If you have questions about spousal support, or your separation or divorce in general, contact Gelman & Associates. Our lawyers are knowledgeable and compassionate, but also tough when necessary. We provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

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