A working spouse needs to consider the impact of retirement on spousal support in their separation agreement. Many support providers assume they’ll be able to reduce or eliminate their support obligations at retirement, based on reduced earning potential. Unfortunately, it’s often not that simple.
This is a conversation to be had upfront and, ideally, the separation agreement would specify that retirement is a change that will affect support. In 1994 The Supreme Court of Canada ruled that, to establish a material change in circumstances, the change must not have been foreseen or foreseeable at the time the agreement was reached. Ontario judges have, in some circumstances, ruled that retirement does not clear that bar.
If you reach a separation agreement at 55, and your employer’s mandatory retirement age is 65, your retirement date isn’t a surprise. This can be interpreted as a foreseeable change and, as such, would have to have been considered in the original agreement. The courts have also ruled that support change applications are premature when the application has been brought in advance of actual retirement. This creates a procedural barrier to resolution, and the applicant must resubmit after retirement.
This issue can even result in supporting spouses being forced to work longer than they want or had planned to continue their payments and fund their own retirement. If a party can‘t pursue a variance in advance of involuntary retirement, it can create significant inequity. Family lawyers need to advise their clients on this issue, and warn them about what is considered unforeseeable change.
The best approach for those who haven’t anticipated retirement in their agreement is to address it two or three years in advance of retirement. This leaves some time to resolve the issue and get ready for an application immediately upon retirement.
Herschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.