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How Do I Change Spousal Support Payments in Ontario

Spousal support can be one of the most contentious topics in any divorce. A question I am often asked is “how do I change spousal support payments in Ontario?” Typically the answer is only when there is a material change in circumstance, such as a retirement. If you are paying spousal support and you have found yourself in a situation where you can’t afford to keep paying, continue reading.

Last fall the Supreme Court of Canada refused to hear an appeal of a change in spousal support. The facts of this case demonstrate a view of the extreme behaviour of one spouse.

 

Spousal Support Equals Pension For Life

The couple married in 1968 when they were both 24-years old. The husband was a dentist and the wife was in a PhD program at Queen’s University. They had two children, who both went to boarding school in the United Kingdom at age 12.

In 1985, after 17-years of marriage, the couple divorced. They were both 41-years old at separation. At the time of the divorce, the husband was earning approximately $275,000 per year. The final divorce judgement required the father to give the mother $40,000 in compensatory spousal support. Non-compensatory spousal support was set at $4,000 per month for life, and indexed with inflation. The Order did provide that the amount of spousal support could not be reduced unless the wife was earning more than $30,000 per year.

The wife moved to the United Kingdom where there is no tax on spousal support. By the time the husband asked for a review of this order in 2016, spousal support was over $70,000 per year tax-free. The wife continued to live in the United Kingdom, but had a summer house in France and a winter house in Panama. The wife never made any effort to obtain employment after divorce.

The husband summarized the wife’s activities as follows. Since the Divorce Judgement (the wife) has travelled extensively and led an active lifestyle throughout the world, going to Thailand, a Caribbean cruise, travelling the Silk Road, trekking in the Himalayas, travelling to New Zealand and Australia, skydiving, assisting with world cup sailing regattas in Spain, travelling throughout the Southern United States in a RV, skiing, scuba diving, spending several months in Africa, travelling the Middle East, northern British Columbia, a safari in the Serengeti and she has climbed Mount Kilimanjaro. The judge characterized these activities as enjoying the pension for life.

 

Can’t Afford Spousal Support in Retirement

By age 72, the husband had been paying spousal support for over 30 years. He was planning for retirement and estimated that his retirement income would be approximately $35,000 per year. He simply couldn’t afford to continue to pay over $70,000 per year in spousal support. The Court found that the husband seeking retirement at his age was completely reasonable.

The Judge reviewed the law on spousal support variation and found that the husband had to prove a “material change” in circumstance. The planned retirement in this case met the threshold and the initial spousal support order was reviewed. Importantly, reviewing a spousal support order does not mean the Judge starts the entire process over. The review is limited to how the change in circumstance impacted the initial order.

In reviewing the present circumstances, the Judge observed that the marriage was not long, the wife had a university education and was relatively young at the time of divorce. The wife’s unemployment was simply her lifestyle decision.

 

How to Change Spousal Support Payments

The Judge ultimately found that the husband’s retirement was justification to reduce spousal support to $1 per month. The wife appealed this decision and the Ontario Court of Appeal didn’t agree with the trial judge. The Court of Appeal found that the husband should have been paying more spousal support for a shorter period of time. In the end, the trial judge’s decision was changed and the husband will now continue to pay $850 per month in spousal support for the rest of his life.

 

How to Pay a Fair Amount of Spousal Support

In this extreme case, the husband has already paid millions of dollars in spousal support. This support has been paid for more than twice the duration of the marriage. The lesson learned here is that spousal support is very difficult to alter once the initial order has been made.

Previous Court decisions have established that voluntary early retirement will not be a sufficient reason to reduce your spousal support obligation. Any reduction in your income needs to reasonable and not voluntary.

If you are currently paying spousal support and are considering applying to have it changed, contact Hearty Law for legal advice. Or if you are currently involved in litigation over spousal support, either as the payor or recipient, contact Hearty Law. Email toronto@heartylaw.ca or ottawa@heartylaw.ca or fill out the contact form. Paying a little bit for legal advice now may have a significant financial impact in the future.

Hearty Law provides legal services on spousal support, retroactive support, hidden assets, concealed income, distribution of property and other family law financial issues.

Hearty Law serves Toronto, Ottawa and surrounding communities.

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