Spousal support obligations following retirement are set to become a hot topic as Boomers head towards the end of their working lives, says Toronto family lawyer William Abbott.

Abbott, a partner with MacDonald & Partners LLP, recently acted for a 60-year-old man who successfully moved to terminate a 20-year-old support order so that he can retire in financial and bodily comfort.

“As the Baby Boomers continue moving towards retirement, this is only going to become a bigger issue,” he says. “Decisions are all over the map when it comes to whether someone has paid enough support, but in this case, the judge found he had already paid long enough, so he could go ahead and stop support.”

Retirement and Child Support

According to Abbott, prospective retirees at the younger end of the age scale or with dependent children are most likely to face resistance if they are still paying spousal or child support to a former partner. 

For example, many public sector employees may be entitled to retire on an unreduced pension in their 50s under the “85 factor,” which kicks in when their age and years of service add up to that number.

“Courts may not agree that it’s reasonable to retire and reduce support when you have children still at university,” says Abbott, who asks his clients to turn their mind to retirement when settling their divorce, often many years before it becomes a live issue.

“We might have it written into the settlement that the support payor undertakes – barring a catastrophic change in circumstances – not to retire until a certain year, so that you know the support will run at least until the children should be finished in school,” he adds.

Laroche v. Lynn

According to Ontario Superior Court Justice Gregory Ellies’ decision in Laroche v. Lynn, the parties separated in 1996 after 12 years of marriage and settled their family law issues in 1999 on terms that were incorporated into a final order. In the two decades since, Abbott’s client had paid his former wife $700 per month in spousal support.

After becoming eligible to retire from his job as a mining engineering technologist in 2019, the man brought a motion to vary the terms of the 1999 order, claiming he could not afford to continue paying support after he stopped working, which would roughly halve his annual income. Following 42 years in the job, he told the court he was in constant pain, and wanted to stop working so that he could move to Alberta to be nearer his son and grandchildren.

“He got into a chicken-and-egg kind of situation, where he wanted to retire, but couldn’t until he knew the support would be stopping,” Abbott says. 

In response, his client’s ex-wife, who receives benefits through the Ontario Disability Support Program, asked the judge to increase her support entitlement, due to her inability to work and her former spouse’s wage increases since their separation. 

The first part of the decision dealt with the admissibility of evidence from the former wife’s treating psychiatrist, who expressed the view that the woman’s long-standing and continuing mental health problems prevented her from holding down a job in the near future. 

Justice Ellies found the evidence ought to be excluded under r. 20.2 of the Family Law Rules, concluding that the psychiatrist’s opinion strayed beyond the scope allowed by suggesting that her patient could not find any kind of employment to accommodate her needs.

Still, even if he had admitted the evidence, “it would not change my decision to terminate spousal support,” the judge added.

Spousal Support Termination and Retirement

While noting that courts are generally reluctant to vary spousal support orders on the basis of early retirement in longer marriages, Justice Ellies wrote that the 12-year union in this case was more of a medium length, and that there was no evidence the man was seeking to avoid paying support. As a result, the judge found that his retirement eligibility constituted a material change in circumstances.

Justice Ellies went on to find that support should be terminated rather than reduced, after concluding that Abbott’s client had paid close to the maximum amount of support required, and for much longer than contemplated by the Justice Department’s Spousal Support Advisory Guidelines. 

“Regardless of overall quantum, Mr. Lynn has been paying support for much longer than the Guidelines would suggest. After 20 years, I believe that, if Ms. LaRoche is, indeed, unable to work because of her disability, it is time that she relied on the public assistance that is clearly available to her, rather than on Mr. Lynn,” Justice Ellies wrote. “An order shall issue terminating the support payable to Ms. LaRoche.”