Can Spousal Support Stop When the Payer Retires in Ontario?

If you are paying spousal support and approaching retirement, it is natural to wonder whether your income drop means the payments can end or shrink. It is also a common point of conflict, because the person receiving support may be counting on those payments.

This article explains how Ontario courts generally approach retirement, how pensions already divided as property are treated, and the steps for asking a court to change an order. It is general information, not advice.

Retirement and a material change

Under the Divorce Act, a court can vary, rescind or suspend a spousal support order, retroactively or prospectively, on an application by either or both former spouses. Before it varies an order under the Divorce Act, it must be satisfied that either former spouse's circumstances have changed since the order or the last variation, and it must take that change into account. If your order was made under Ontario's Family Law Act instead, how variation works depends on that Act, so it is worth confirming with a lawyer which rules apply to you.

If an order or agreement says nothing about retirement, retirement is usually a material change that can support a variation, and retirement is one of the reasons spousal support ends. That is not the same as support ending automatically.

Your own order or agreement may say something different, such as a review clause or a fixed end date, so read it closely.

Early or voluntary retirement

Courts closely examine early retirement. If it is voluntary and not necessary or reasonable, the court may find no material change and leave support unchanged. Health problems can justify early retirement. Every case turns on its own facts, so a court looks at your situation as a whole rather than applying a single test. Points that can matter include the following.

• Whether the retirement is voluntary, and whether it is necessary or reasonable
• Whether health problems required you to stop working
• Whether your order or agreement says anything about retirement
• How much of your pension was already divided as property
• The recipient's age, health and ability to support themselves

Pensions, savings and double-dipping

If a pension was already divided as property, support after retirement focuses on the undivided portion of the payor's pension, to avoid double-dipping. The payor must prove how much was already divided.

Property division and support are separate. For married spouses, equalization of net family property means the spouse with the larger net family property pays half the difference to the other. Common-law partners are not legally required to split property acquired while living together.

How savings, investment income and withdrawals are counted depends on the facts. The Spousal Support Advisory Guidelines (SSAG), which courts often use when setting spousal support, start from the definition of income in the Federal Child Support Guidelines, and section 19 of the Federal Child Support Guidelines is often the basis for imputing income. A lawyer or accountant can help you work out what applies.

Where the recipient's situation fits

The recipient's circumstances matter as well. A recipient must make reasonable efforts to contribute to their own support. Once a recipient is self-sufficient, support can be terminated, though courts often decide 'not yet', reducing support or setting a future end date.

Remarriage or a new relationship does not automatically end support, though support is often reduced and sometimes ended.

If your order was for a definite period or until a specified event, a court cannot later resume it unless two things are shown: a variation is needed to relieve economic hardship from a related change, and the changed circumstances would likely have produced a different original order.

Indefinite support does not necessarily mean permanent. It stays subject to variation and review. A review is different from a variation, because a variation requires a material change in circumstances, while a review is more like an initial application and the review clause should limit what is reviewed.

Do not simply stop paying: next steps

The Family Responsibility Office cannot change support terms. Only a court can change an order, through a motion to change. After it is issued, you must serve the other spouse within 30 days and file an Affidavit of Service (Form 6B), and the other spouse has 30 days to respond, or 60 days if they live outside Canada or the United States.

If you stop paying support that is owed under an order filed with the Family Responsibility Office, its enforcement tools include support deduction orders sent to employers, bank garnishment, diversion of federal payments such as tax refunds, EI, CPP and OAS, and licence suspensions. A separation agreement is not filed automatically; it must be filed with a court and registered with the Family Responsibility Office before it can enforce the agreement.

• Read your order or agreement for retirement, review or termination wording
• Gather pension statements, proof of what was already divided, and savings records
• Get medical information if health is a reason for retiring
• Plan the timing of a motion to change before you retire, and ask a lawyer how to do so
• Keep paying as ordered until a court says otherwise

Frequently asked questions