BACKGROUND:
The Appellant and Respondent were married in 1982 and separated in October 2007 after a 25-year long marriage. The parties divorced in 2009 and have three independent, adult children.
The parties resolved the issue of spousal support through a final Consent Order in February 2013. The Order provided that the Respondent would pay the Appellant monthly spousal support in the amount of $15,500, as well as an unqualified payment of $100,000.
The marriage was characterized as a long-term traditional marriage during which the Appellant remained at home and supported the Respondent’s medical career. The Appellant also suffered from significant psychological and physical health issues and has been unable to work since at least the parties’ separation. By the time of the motion to change, the Respondent had paid approximately $2.1 million in spousal support and was in his sixties, preparing to retire.
The Appellant brought a motion to change seeking increased spousal support based on the deterioration of her health, increased medical expenses and her continued inability to work. The Respondent sought to terminate support based on his impending retirement and corresponding decrease in income.
The Motion Judge found that there had been a material change in circumstances but ordered that support continue only on a transitional basis until September 30, 2026. The Appellant’s request for retroactive support was dismissed. The Appellant appealed this decision to the Ontario Court of Appeal.
ANALYSIS AND THE LAW:
Material Change in Circumstances and Variation of Spousal Support
The court found that the Applicant had established a material change in circumstances based on the significant increase in her medical expenses. The Respondent’s impending retirement and corresponding decrease in income also constituted a material change. As a result, a review of the existing spousal support obligation was warranted.
When considering varying a spousal support order, section 17(7) of the Divorce Act outlines that the court must consider factors, including the economic advantages and disadvantages arising from the marriage or its breakdown, economic hardship, and the parties’ economic self-sufficiency.
The Motion Judge recognized that the Appellant’s entitlement to spousal support was based on both compensatory and non-compensatory bases. However, the Judge also considered the Respondent’s impending retirement, the $2.1 million already paid in support, the parties’ similar net worths, and the Appellant’s inability to return to work. The court concluded that the Applicant should receive a further two-year transitional period of compensatory support, after which support would terminate on September 30, 2026.
Effect of Retirement on Spousal Support
The court confirmed that retirement can constitute a material change in circumstances that warrants reconsideration of a spousal support obligation. The original 2013 Order did not contemplate the impact of the Respondent’s retirement, and the court therefore considered the parties’ expected retirement incomes and financial resources.
The Court of Appeal relied on the Spousal Support Advisory Guidelines, Schulstad v. Schulstad, 2017 ONCA 95, and Boston v. Boston, 2001 SCC 43. These authorities recognize that where support is compensatory and assets have been equalized, the recipient may be expected to use those assets in an income-producing manner upon the payor’s retirement.
Standard of Review
The Court of Appeal emphasized that support decisions are entitled to significant deference. Under Hickey v. Hickey, [1999] 2 S.C.R. 518, the Supreme Court of Canada confirmed that an appellate court should only interfere where there is a material error, serious misapprehension of the evidence, or an error of law. An appeal court cannot overturn a support order simply because it would have balanced the factors differently.
The Court of Appeal found that the motion judge had carefully considered the Applicant’s health issues, including the relationship between her PTSD and the domestic violence allegations. However, the motion judge was not prepared to find that the Respondent was the sole cause of the Applicant’s PTSD, particularly in light of evidence concerning abuse the Applicant experienced during childhood. The Court of Appeal found no reversible error in this analysis.
CONCLUSION:
The Ontario Court of Appeal dismissed the Applicant’s appeal and upheld the motion judge’s decision to terminate spousal support effective September 30, 2026. The Court confirmed that a long-term traditional marriage may establish an entitlement to support, but that entitlement must be reassessed considering current circumstances, including the payor’s retirement and the recipient’s available assets.
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