Spousal support is a sensitive topic for many people going through a separation. Many payors are surprised by how much support they might be required to pay a spouse or former spouse, and even more surprised by just how long the obligation might last.
Some court orders or separation agreements have built-in end dates or termination dates for spousal support. Everyone agrees or the court orders that support needs to be paid for 5 or 10 years, and once all the payments are made the obligation is fully satisfied.
In many cases though, most frequently in separations where the relationship was long, the potential duration for spousal support is indefinite. This does not necessarily mean that the payor will be paying for the rest of his or her life (although it can – and indeed the obligation survives the death of the payor and typically requires corresponding security in the form of life insurance or similar) but it will often mean that support will be reviewed at some point in the future. A review date can be scheduled or can occur simultaneously with a major life event, such as retirement. No review will guarantee termination, and not all reviews result in a reduction of spousal support. The facts at the time of the review and the time of the original order or agreement are all relevant and unique to each case.
For many couples who were legally married and went through an equalization process as part of their separation, retirement may be the point at which both parties start relying on assets that are already equalized in order to support themselves, and those equalized assets are generally going to be excluded from the parties’ respective incomes for support purposes, and can result in a termination of support.
Sometimes there are events specified in the court order or separation agreement that trigger a review. For example: remarrying or retiring could be specified as an event that triggers a review, whether or not support actually increases or decreases as a result. It can be very helpful to include such specifics in agreements so that the parties have the certainty of knowing when support will be re-examined. If there is an argument about appropriate ongoing support at that point, at least the issues of whether a review is justified will be dealt with in advance.
With the current demographic changes in Canada and the retirement of baby boomers, the courts are dealing with many reviews of spousal support resulting from the retirement (or desired retirement) of the payor. It is not the case that retirement automatically entitles a payor to reduce or stop support, and there are many cases where a court determines that it is not appropriate to allow the payor to retire at the date of the review. Again, specifying in the original order or agreement what a reasonable retirement age might be, or what events will trigger a review can help to set expectations and limit the scope of the argument when one party is looking to reduce his or her income and therefore support.
Getting proper advice on an agreement or court order at first instance is important, as is having competent counsel who can advise you through a review or contested variation proceeding.
This blog post was written by Jenny Johnston, a member of our Family Law team. She can be reached at 613-566-2081 or at jenny.johnston@mannlawyers.com.
