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Hi, my name is Daphna Schwartz, and I am a lawyer with the Feldstein Family Law Group. Today I’m going to talk to you about what happens when a spouse responsible for paying ongoing spousal support wants to retire.

Many clients who are paying ongoing, court-ordered spousal support ask, “When can I retire, and what can I do about my support payments if I do retire?” A support payor may have various reasons for wanting to leave the workforce, such as deteriorating health, increasingly unmanageable employment demands, changing family responsibilities, or a desire to relocate. Sometimes, a support payor’s position has been terminated, and it makes more sense to retire than to seek new employment.

Which of these are considered valid reasons for retirement, and when will a court agree to reduce or terminate spousal support obligations? As you might have guessed, there is no straightforward answer to this question.

Here’s what the current case law has to say on this issue: the Supreme Court has set out a very high threshold that must be met in order to have an existing support order changed, or “varied.” Any spouse seeking to vary a support order must show there has been a “material change in circumstances” since the original order. A “material” change is one that would likely have resulted in a different support order, had those circumstances existed at the time. Further, the change must be one the parties did not contemplate at the time of the original order and that was not reasonably foreseeable.

It is difficult to argue that retirement, and specifically voluntary early retirement, constitutes a “material change in circumstances” that warrants a reduction or termination of spousal support. We see many cases on this issue reported each year in Ontario, and in each case it is the specific facts, and how convincingly they are presented, that determine the result.

For example, in the recent case of Hesketh v. Brooker, Mr. Hesketh, the support payor, had taken voluntary early retirement at age 55. He was motivated to do so after facing a series of serious health complications that included heart by-pass surgery, heart valve replacement surgery, the removal of his gallbladder, and chronic health problems such as high blood pressure, sleep apnea, and weight problems. He felt it was necessary for him to focus on his physical health, and he retired from his position at the Ministry of Transportation at the earliest date he could without suffering any reduction in his pension benefits.

The court was not sympathetic to Mr. Hesketh’s health concerns. The court stated that without evidence from medical professionals and his employer corroborating the seriousness of these conditions and his employer’s inability to accommodate his health needs, the retirement was purely voluntary and did not constitute a material change in circumstances. Mr. Hesketh had made this choice in face of ongoing support obligations, and his support should not be reduced.

Had Mr. Hesketh led more solid evidence, perhaps the court would have agreed that his health concerns and need for retirement did constitute a material change not reasonably in the contemplation of the parties at the time of separation.

Numerous other factors were considered in that case, and likely will be anytime a court considers a case of voluntary retirement. These include:

  1. the nature of the original support award;
  2. the financial position of both spouses at the time of retirement;
  3. the age of the parties; and
  4. their financial positions.

In other words, whether or not you can retire and change your support obligation will depend entirely on your own circumstances, and how you present your case to the court.

If you need legal advice about your own situation, please call us at 905-581-7222 for a consultation. Thanks for watching.