Does retirement end spousal support obligation?
In Boston v. Boston, Justice Major noted that in the Supreme Court of Canada the purpose of spousal support is to relieve economic hardship suffered by one party following the breakdown of the marriage and that there is no reason spousal support cannot continue past the date of retirement. However, on retirement a spouse can apply to have their support payment changed if they can demonstrate a material change in circumstance.
In L.M.P. v. L.S., a material change was defined as “a change that is substantial continuing and that if known at the time, would likely have resulted in a different order. Some examples applicable to our scenario may include but not be limited to: the payor’s ability to pay support is compromised, the needs of payee have changed, and concerns of double recovery.
What is double recovery?
Double recovery refers to a situation where on a breakdown of a relationship, a pension has been equalized and divided and then again, taken into account when determining income for payment of spousal support purposes. However, in the Court of Appeal in MacQaurrie v. MacQuarrie, Justice McQuaid stated that the reality of some cases will call for double recovery of spousal support in the interest of the principle of fairness. In fact, in Senek v. Senek, the Court ruled that despite the husband’s retirement the wife was entitled to double recovery and receive spousal support from her husband’s pension based on necessity.
Some other factors to consider
The courts will also consider some factors such as the length of the marriage as well as whether a payor is retiring early, where support has been paid for less than the length of a marriage, and where the payor is retiring to avoid paying spousal support.
Looking for guidance or have any questions related to your separation or divorce? Feel free to contact Derek Ang, Associate Lawyer at Lockyer + Hein LLP for a free 30 minute consultation at [email protected] or 647-617-9717.
