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What constitutes a “material change in circumstances” when it comes to a party’s request to terminate spousal support? In a recent case, the Ontario Court of Appeal considered this very question and was asked to determine whether the trial judge erred in terminating spousal support.

The Husband’s Decision to Retire

The parties were married for approximately 24 years and separated in 2012. They had three children together, who were now adults.

In 2015, the parties entered into a consent order. The order equalized the parties’ assets and provided that the husband would pay the wife spousal support in the amount of $1,650 per month. The order also stipulated that either party could request a change in spousal support if there was a material change in circumstances, whether the change was “foreseen or foreseeable, unforeseen or unforeseeable.”

In 2017, the husband brought a motion to change on the basis that he intended to retire later that year. The husband would be 57 at that time and would be retiring with a full pension.

The trial judge found that the husband’s retirement was a material change in circumstances and terminated spousal support.

The wife appealed the trial judge’s decision to the Ontario Court of Appeal.

Finding a Material Change in Circumstances

In dismissing the wife’s appeal, the Ontario Court of Appeal found that the trial judge had properly considered all the evidence before her regarding the husband’s retirement.

Specifically, the trial judge found that while the original consent order did not reference retirement, it did provide that either party could request a review or change to spousal support in the event of a material change. The trial judge concluded that the husband’s retirement did, indeed, constitute a material change.

The trial judge also found that the husband did not opt for early retirement so that he could avoid paying spousal support. She noted that the husband had worked as a teacher for 27 years and that there is an inherent drain in the teaching profession. Furthermore, the husband gave evidence that his goal had been to retire when he became eligible for a full pension. The trial judge concluded that the husband’s decision to retire based on eligibility for a full pension was not unreasonable.

The Ontario Court of Appeal concluded that the trial judge properly considered the evidence before her and applied the correct law in interpreting the parties’ consent order.

Terminating Spousal Support

The Ontario Court of Appeal also found that the trial judge did not err in her consideration of the parties’ assets and in finding that income from capital should be imputed to the wife (the wife had approximately $500,000 in investments). As the trial judge pointed out, this information was relevant to an assessment of the parties’ relative incomes.

Furthermore, the Ontario Court of Appeal found that it was reasonable for the trial judge to refer to the fact that the wife had re-partnered. It was clear that the trial judge only considered this “financial benefit” as a general factor in assessing the parties’ needs and means – there was no indication that she actually imputed income to the wife on this basis.

Finally, the Court of Appeal found that it was open to the trial judge to find that any economic disadvantage had been fully compensated for by the husband through both the equalization of their assets and the spousal support that he had paid the wife by the time of the trial.

All in all, in dismissing the appeal, the Court of Appeal concluded that the wife had not demonstrated that the trial judge erred in finding that the husband’s retirement was a material change and that spousal support should be terminated.

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