Retirement Does Not Automatically Terminate Spousal Support Obligations

Many spousal support payors assume that their spousal support obligations will end when they retire. If you are paying support to a former spouse, however, don't assume that your support obligations will end with your employment. The courts look at the question of whether a support payor's retirement justifies the termination of his or her support obligations on a case-by-case basis. In many instances, support payors have been ordered to continue to pay some or all of their spousal support payments even after they have retired.

When Can the Issue of Retirement Be Raised?

There are several different periods at which spousal support payors may raise the issue of whether they must pay support post-retirement with the courts. The issue can be raised at the time when an order is made or an agreement is reached in the aftermath of the separation. It can also be raised after a final order for support has been made or an agreement is entered into. In the latter case, support payors can raise the issue prospectively, before they retire, or after they have already retired.

Different considerations come into play, depending on when the issue is raised.

The courts rarely set a termination date for support in anticipation of the payor's retirement at the time that an initial support order is made. Instead, the courts tend to adopt a "wait and see" approach to the payor's retirement. Even when support payors provide evidence of their intention to retire, the courts usually "decline... to hypothesize into the unknown and unforeseeable future".1

In circumstances where an indefinite spousal support order was made or a separation agreement was reached and no termination date for spousal support was set, payors are usually under an obligation to demonstrate both that they have retired and that their income has been reduced before a court will conclude that the retirement constitutes a "material change in circumstances" that would justify a variation or termination of their support obligations. This is easier to demonstrate when the retirement has already happened; the Ontario Court of Appeal has directed the courts to exercise great caution when hearing applications for the variation or termination of spousal support because of an upcoming retirement.2

When a support payor who has already retired brings an application to have his or her spousal support obligations varied or terminated, the court will consider whether the retirement was reasonable. The payor's...