This case is about how an early retirement can constitute a material change in circumstances in a motion to terminate spousal support.

Background

The parties separated in 2012 following a 25-year marriage. They have three children who are all now adults. In 2015 the parties settled the outstanding issues between them as set out in the Consent Order of Justice Nicholson. The Order equalized the parties' assets and in addition provided a non-term limited spousal support by the Respondent to the Appellant in the amount of $1,650 per month. It is to be noted that 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 Respondent brought a motion to change his spousal support obligation based on a material change – his retirement at the age of 57 with a full pension. Of importance is the fact that the Appellant had retired from her public service position with a full pension in the same year at the age of 56.

The trial judge found that the Respondent's retirement did constitute a material change in circumstances and proceeded to terminate the support obligation.

The Appellant appealed the decision to the Ontario Court of Appeal.

Appeal and Analysis

While the Appellant argued that the Respondent’s retirement could not constitute a material change because the retirement was early, voluntary and unreasonable, and not referenced in the Consent Order, the Court disagreed on the basis that the Consent Order’s provision 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” encompassed retirement.

The Court also disagreed with the Appellant’s argument that the Respondent was retiring at the age of 57 in order to avoid paying spousal support. The Court acknowledged that the Respondent’s 27-year career in education must have taken a toll and that retiring when he became eligible for a full pension has been a reasonable goal and motive for the Respondent. The court noted that this is especially so when the Appellant herself retired at the age of 56 with a full pension.

With regards to the issue of termination of spousal support, the Appellant argued that the five years of spousal support she received from the Respondent was insufficient compensation for her income disadvantages that arose from their marriage. She noted that the marriage included many maternity leaves and part-time jobs.

While the Respondent had a higher pension income, the Court found that because the Appellant had approximately $500,000 in investments while the Respondent had no capital assets, a reasonable return rate applied to the Appellant’s investments would effectively equalize the parties’ pension incomes.

This case is a reminder that careful attention should be paid to the wording of the Consent Order. For example, in Haworth v. Haworth 2018 ONCA 1055, the Order expressly provided for spousal support to be paid "each and every month thereafter until the [payee] dies". In that case, the appeal to change spousal support obligation was refused due to the express wording of the Order preventing the same from happening.

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