Do you pay or receive spousal support but have recently had a change in income, retired or remarried? Can these events justify a change in the amount of spousal support, or even lead to a termination of the payments?
This article reviews various applications to vary or terminate spousal support in different circumstances. It also looks at a recent decision of the Court of Appeal for British Columbia in which an ex-husband sought to terminate spousal support payments because he had recently retired.
Spousal support claims by married couples occur under the federal Divorce Act. Under section 17, a court is permitted to vary, rescind or suspend an order providing for spousal support. However, before the court makes a variation, it needs to be satisfied that there has been “a change in the condition, means, needs or other circumstances of either former spouse … since the making of the spousal support order or the last variation.”
In addition, the Divorce Act specifies the aims of varying a spousal support order, as follows:
- recognition of the economic (dis)advantages arising from the marriage or its breakdown;
- apportionment of the financial consequences arising from the care of a child;
- relief of economic hardship arising from the marriage breakdown; and
- the promotion of the economic self-sufficiency of each spouse.
The Family Law Act of British Columbia applies to spousal support claims by common law partners. Section 167 allows the court to change, suspend or terminate a spousal support order if satisfied that one of a number of listed circumstances applies, including a change in the condition, means, needs or other circumstances of either spouse.
The Spousal Support Advisory Guidelines (the “Guidelines”) contain useful comments on various material changes that may warrant a variation or termination of spousal support orders. For example, the Guidelines describe:
- applications to reduce spousal support due to changes in income;
- the potential impact of the paying or recipient spouse’s remarriage or re-partnering; and
- the paying spouse’s retirement.
For example, in relation to the latter category, the Guidelines note that retirement may amount to a material change due to the likely reduction in the paying spouse’s income, but warn:
“For our purposes, an “early” retirement is either a retirement on a reduced pension or a retirement on a full or unreduced pension before 65 years of age, in the absence of health issues or other special circumstances. If the court sees the early retirement as “voluntary” and not necessary or reasonable, then it is likely that spousal support will not be changed.”
In Hague v Hague, the parties married in 1979 before separating in 2011 and later divorcing. During their lengthy marriage, Mr. Hague was the primary income earner while Ms. Hague was primarily responsible for the couple’s four children and the household.
After the separation, they entered into a consent order, dividing their family property equally and providing for Mr. Hague to pay spousal support.
In 2021, Mr. Hague retired after turning 65. He applied to the court to terminate the spousal support payments. Ms. Hague argued that retirement did not constitute a material change in circumstances and that she had not been adequately compensated for the economic disadvantages of the marriage and its breakdown.
The chambers judge assessed the positions of the parties. His Honour found that the ex-wife had an annual income of around $100,000, or about $55,000 less the spousal support. She had assets of around $550,000. The ex-husband was in a similar position, with a post-retirement income and assets of a similar value, but also a residence jointly owned with his new spouse.
His Honour decided that Mr. Hague’s retirement was not an early one, given he was over 65, his pension had fully vested and there was no evidence suggesting the retirement was designed to avoid paying spousal support. It constituted a material change in circumstances.
Finally, the judge decided that the economic consequences of the marriage and its breakdown had been shared equitably, and ordered the termination of support. Ms. Hague appealed.
The Court of Appeal agreed that the reasonable retirement was a material change in circumstances as it was not contemplated when the original spousal support order was made.
Ms. Hague argued that she was entitled to compensatory spousal support to provide for equitable sharing of the consequences of the marriage. The Court of Appeal agreed with the chambers judge that her sacrifices during the marriage had been compensated by the $360,000 in spousal support payments made to date and the division of family property.
The Court opined that the difference in the parties’ financial position stemmed from Ms. Hague’s decision to leave the workforce in 2014 and collect CPP benefits earlier and use her capital from the division differently. The Court upheld the decision to terminate spousal support payments.
The experienced family lawyers at Meridian Law Group have advised clients on spousal support matters for over 30 years. Whether you are seeking or defending an original spousal support order, including as part of overall family law proceedings, or need assistance with variation or termination of spousal support, we provide exceptional services to position you to move on with your life.
Divorce and separation are stressful, so let us guide you on the legal aspects. Located across from the courthouse in downtown Vancouver, the firm represents clients throughout British Columbia. To organize a consultation, please call (604) 687-2277 or reach out online.