Retirement - No Automatic Termination Of Spousal Support Payments

When separation and divorce issues such as spousal support are settled through written agreement or court order, they're not easily changed. If there was no pre-set provision for a periodic review and ex-spouses can't agree on an amendment, going to court is the only other option. With baby boomers now in or near retirement and grey divorce on the rise, aging ex-spouses may assume that retirement may provide relief or escape from paying up. In Ontario, such an assumption is risky.

MCIC - The Basis For Variation

Judges typically won't step in to alter an existing separation agreement or court order. To generate some torque in reducing or terminating spousal support payments, the one seeking a variation must provide sufficient proof that a material change in circumstances (MCIC) has taken place since the original agreement or court order.

An MCIC might include events such as a substantial change in financial situation or a remarriage. The change, had it arisen or been known at the time of the original agreement or court order, would likely have resulted in a different calculation of support payments.

Retirement - No Exact Match For An MCIC

Retirement from work is one of life's big milestones and brings on a shift in work earnings, but may not always fulfil the legal definition of an MCIC. In two recently appealed cases (Hickey v Princ and Cossette v Cossette), the judges weighed more than the fact of the payors' retirements. Other considerations included the payors' health, the early or voluntary nature of the retirements, and the presence of one payor's financially well-endowed new wife. 

Lesson learned: retirement doesn't automatically provide an easy escape hatch from support payments. Payors do well to check with a lawyer before taking self-directed action for financial relief. Otherwise, they could find themselves the target of Ontario's support payments watchdog, the Family Responsibility Office - an entity we wrote about here.

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