David Hasselhoff has been paying $21,000 per month in spousal support to his ex-wife, Pamela Bach, since they divorced in 2006. They were married for 17 years and have 2 adult daughters together. The Hoff is now 63 and says he wants to retire but can’t due to his spousal support obligation. He also says that he only has $4000 in the bank and his gross income isn’t enough to cover his expenses and spousal support payments. Hasselhoff claims he had to dip into his retirement savings to continue paying and he has filed court documents requesting a termination of the spousal support.David says Pamela has not made efforts to support herself in the past decade, despite the fact that she could work.
Bach says Hasselhoff’s claims are not so and that he has millions in international real estate and other assets. He has also been flying his current fiancé around the world.
Can he choose to retire and then ask for a variation in spousal support? Or can spousal support be varied due to a reduction in income?
If David were in Ontario trying to vary his Spousal Support order, he could’ve applied under s.17 of the Divorce Act since he was married to Pamela. Under the DA, a court can make an order varying support if it is satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouse since the making of the spousal support order. A variation of spousal support is intended to recognize any economic advantages or disadvantages to the former spouses arising from the marriage breakdown, to relieve any economic hardship of the former spouses arising from the breakdown of the marriage and to promote the economic self-sufficiency of each former spouse within a reasonable period of time.
In Cossette v Cossette, the Ontario Superior Court of Justice held that parties can’t get out of support obligations by unilaterally deciding to leave the workforce and that voluntary retirement was not a material change that warrants a variation in spousal support. Further, the determination of when support stops in Ontario is determined on a case by case basis. If David Hasselhoff wanted to retire and reduce his spousal support payment on that basis, the court in Ontario would likely view this as trying to get out of support early. Hasselhoff is staying in shape, travelling, engaged to be married and is still able to work. That would likely be sufficient for the court to determine that retirement is voluntary and not a reasonable decision based on the circumstances. Therefore, the court would be unlikely to vary spousal support on retirement basis.
For a contested spousal support variation like this, the party seeking to vary the order must prove there has been a material change, one that would likely have resulted in different terms, if those circumstances had been in existence at the time of the original order. This change can’t have been in contemplation of the parties at the time of the original order. It is possible that David may be able to prove his reduced income is a material change but it is a difficult test to meet.
According to the Spousal Support Advisory Guidelines, Pamela could impute David’s income (and argue he makes more than he says) and David could also impute Pamela’s income for under/unemployment to encourage self-sufficiency. If David and Pamela can’t come to an agreement on a variation, the court will have to decide if there is a material change to warrant a variation of the current order.
Hasselhoff got engaged in May to his 36-year old girlfriend Hayley Roberts. Maybe the motive behind David’s desire to lower his spousal support now is to pay for the wedding and to support his soon-to-be wife who was earning minimum wage as a shop worker in Wales before she met him.