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Couple who go through divorce or separation have to come to agree (or litigate) a number of issues such as what happens to the matrimonial home, child custody, and matters relating to spousal or child support. While some issues can be resolved permanently when a divorce occurs, some issues, particularly those relating to support, can change at any time. In a recent decision from the Ontario Superior Court of Justice, the court dealt with two former spouses who each applied for variations to spousal support, though for entirely different reasons.

A tale of two motions

The husband and wife involved in the trial first began living together in 1985. They got married in 1996, and had raised four children before their separation in 2009. At the time of the trial all of their children were grown, independent adults. The wife worked out of the home during the first 15-16 years of their children’s lives and served as their primary caregiver during those years. While she returned to the workforce sometime around the year 2000, it was only in a limited capacity.

The parties executed a separation agreement in 2009. The agreement covered a number of issues, including spousal support. They signed an updated version of the agreement in 2011. Both agreements included provisions stating that spousal support contributions from the husband to the wife would vary along with his income. It appears those instructions were followed.

Things took a turn in 2017 when the husband chose to retire, taking a buyout of his pension. This buyout resulted in a lump sum payment of $1.4 million. While some of it was placed in an account where it was locked in, he received an amount in cash as well.  During the months leading up to the buyout he had been making spousal support payments of $2,900 per month. But he unilaterally reduced the monthly amount to $1,400 in June 2019. Finally, on May 1, 2018 he applied to the courts to have his spousal support obligations wiped out. Meanwhile, the wife had applied for an increase in spousal support. The court had two questions to answer. The first was whether spousal support should be terminated. If not, the second question, relating to whether the husband owed the wife spousal support from his pension buyout.

Should the husband continue to pay spousal support?

The court began its analysis by reviewing the relationship of the parties. After noting that they had been together for a long time, the court referenced that the wife chose to not pursue a career outside of the home, opting instead to provide care for their children. It was her choice to do this that allowed the husband to excel in his career. The court wrote,

“It is undisputed that (the wife’s) spousal support entitlement is significantly compensatory in nature and while her situation has improved, the compensatory element of her claim remains strong. Spousal support has simply not continued long enough or in a way that has ameliorated the impact of the relationship and separation between these parties.”

Should the husband’s lump sum pension buy-out be subject to spousal support?

The husband had tried to argue that his post-separation increase in income through his pension buyout should not be considered as eligible for spousal support. The court found his request to be “completely divorced from the reality of the choices these parties made between them for their family over a long period of time.”

If you have experienced a change in circumstances, or have found that an existing child custody or support agreement is no longer working in your best interests, the team at Gelman & Associates can review your situation and determine what types of changes should be sought. Our offices can be reached Monday to Friday from 8 AM to 8 PM. To schedule a brief consultation, call us at (844) 769-0737 or 1-844-769-0737, or contact us online.

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