Spousal Support and Early Retirement – Is it a Material Change in Circumstances and/or Can Spousal Support End in the Event of Early Retirement?

January 8th, 2019 by Andreina Minicozzi

Spousal support, sometimes referred to as maintenance or alimony, are funds that are paid to one spouse to another upon separation or a divorce. There are various reasons as to why one spouse may be required to pay support to the other, usually to assist financially for a specified amount of time or to compensate a spouse who is seen to have sacrificed their ability to earn during the marriage.

However, what happens when there are material changes in the payor’s initial circumstances  which led to the decision to pay spousal support to begin with, or when the possibility of an early retirement is imminent? One could reasonably make the assumption that their obligation to pay spousal support is subject to termination, as in any circumstance, it is likely that each party would have already been in receipt of their share of the assets accumulated during the relationship.

Unfortunately, this notion is often incorrect. – Clarifying whether the conditions for variation exist, relies solely on a ‘material’ change. According to the Divorce Art, if the payor expresses an interest to amend a court order for spousal support, the court must be satisfied that a ‘change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order’. The former spouse who is requesting to obtain the variation, is responsible for being able to demonstrate that the changes in circumstances are material. In other words the onus is on the spouse who is pursuing the change, to present evidence proving the change should be granted.

In the recent case, Hanniman v Hanniman, 2017 ONSC 7536 (CanLII) an Ontario judge set precedence for what constituted a material change in circumstances, whereby the termination of spousal support was sought, and thought to be justified on the basis that one party entered an early retirement.

Ultimately, the motion to terminate spousal support was dismissed, suggesting that opting to  retire early and being in receipt of less income, did not necessarily provide grounds for termination. The motive for early retirement is a factor that was not disregarded, instead it was looked upon as a voluntary approach that did not align with a mandatory retirement policy.- For this reason, a material change could not be concluded.

Moreover, it must also be taken into account that ‘the changed circumstances, had they existed at the time of the making of the spousal support order… would have resulted in a different order.’ A stipulation in which did not appear in this circumstance.

Nonetheless, it is always advisable for each party to consider devising a separation agreement. A domestic contract which essentially deals with any significant changes to your situation and can include specifics such as the duration in which the spousal support will be paid.

 

Contacting an experienced lawyer for help with issues pertaining to family law matters, will provide you with the information, support and ease needed to navigate through the complexities one may face during a divorce or separation. At Devry Smith Frank LLP, our mission is to help you understand your entitlements, providing each client with the advantage of having a reliable  source of legal advice.

Contact Andreina Minicozzi, of Devry Smith Frank LLP, for experienced family law assistance, at andreina.minicozzi@devrylaw.ca or 289-638-3179


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