Retiring While Paying Spousal Support in Ontario: What Happens

If you pay spousal support and are approaching retirement, you may wonder whether lower income or your age lets you reduce or end it. Often it can be part of the discussion, but it is not automatic.

This article explains how Ontario courts generally treat retirement, and what to do before you change anything.

Retirement is usually a material change

If an order or agreement says nothing about retirement, retirement is usually a "material change" that can support a variation. Retirement is one of the reasons spousal support ends.

A court can vary, rescind or suspend a spousal support order, retroactively or prospectively, on an application by either or both former spouses. It must first be satisfied that either former spouse's circumstances have changed since the order or last variation, and it must take that change into account. Even then, the outcome is not guaranteed and depends on the facts.

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.

• Your age and the usual retirement age in your line of work may matter.
• Medical evidence can be important if health is the reason.
• Whether you could reasonably keep working is a question courts look at closely.

Pensions that were already divided

To avoid "double-dipping," support after retirement focuses on the undivided portion of the payor's pension. The payor must prove how much was already divided.

Equalization of net family property is separate from support. The spouse with the larger net family property pays half the difference to the other. If your pension was counted in that process, keep the records that show it.

Variation, review and time-limited orders

A review is different from a variation. A variation requires a material change in circumstances, while a review is more like an initial application. The terms of the review clause should limit what is reviewed. The SSAG apply on variation and review, but should be used with considerable caution where complex entitlement issues arise.

Indefinite support does not necessarily mean permanent support. It only means no time limit was set when the order or agreement was made, and it stays subject to variation and review. If support was ordered for a definite period or until a specified event, a court cannot later resume it unless a variation is needed to relieve economic hardship from a related change and the changed circumstances would likely have produced a different original order.

What to do next

Do not simply stop or reduce payments when you retire. Only a court can change an order, through a motion to change. The Family Responsibility Office (FRO) cannot change support terms, and its enforcement tools include support deduction orders sent to employers, bank garnishment, and licence suspension.

• Read your order or agreement for any retirement or review clause.
• Gather pension statements, proof of how much of your pension was already divided, and medical records if health is a factor.
• Collect recent income information for both you and your former spouse.
• Raise the issue early, in writing, with your former spouse or their lawyer.
• Speak with a family lawyer, and an accountant about tax, before filing a motion to change.

Frequently asked questions