Can Spousal Support Be Reduced or Ended When the Payer Retires in Alberta?

You may be a payer approaching retirement and wondering whether you can stop or reduce spousal support. Or you may be a recipient who has just heard that the payments are about to change. Either way, the answer is rarely automatic, and it depends heavily on what your order or agreement already says.

In Alberta, a court looks for a change in the condition, means, needs or other circumstances of either party before it varies a spousal support order. This article explains how a retirement-based change is generally approached, what makes some retirements harder to rely on than others, and how to plan for it.

This article covers the law of Alberta.

Retirement does not end support on its own

Neither the Divorce Act nor Alberta's Family Law Act says that support stops when the payer retires. Under the Divorce Act, before varying a spousal support order the court must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the order or last variation. Under the Family Law Act, the ground for changing spousal or partner support is likewise a change in the condition, means, needs or other circumstances of either party.

Which statute applies depends on your relationship. The Divorce Act covers married couples seeking a divorce, and its definition of spouse includes a former spouse. The Family Law Act covers adult interdependent partners and married spouses who are not seeking a divorce.

A court can vary, rescind or suspend a Divorce Act spousal support order, retroactively or prospectively. A Family Law Act order can be varied, suspended or terminated, in whole or in part. What this means for your payments in the meantime depends on your order, so it is worth confirming with a lawyer.

The material change test

The Spousal Support Advisory Guidelines (SSAG) guide summarizes the Supreme Court decision in L.M.P. v. L.S., 2011 SCC 64: the change must be substantial and continuing, and one that, if known at the time, would likely have resulted in a different order. The court should vary only as far as the change justifies. It is not a fresh hearing or an appeal.

Where the order or agreement is silent about retirement, retirement is usually treated as a material change. The guide says the correct question is whether retirement was considered in the previous order, not merely whether it was foreseeable. If the earlier order already took retirement into account, it may be harder to argue that it is a new change.

An order or agreement can also name retirement as an express review ground. A review is closer to an initial application, although its scope can be limited by the terms of the review order.

Early or voluntary retirement

Courts look more carefully at retirements that look like a choice. Retirement is treated as early if the payer retires on a reduced pension, or on an unreduced pension before age 65, absent health or other special circumstances. Early or voluntary retirements are scrutinized closely, and courts may find no material change.

• Retiring on a reduced pension counts as early.
• Retiring on an unreduced pension before 65 also counts as early.
• Health or other special circumstances may change how the retirement is viewed.
• A court may conclude there is no material change at all.

If you are a payer, it helps to keep records of why you are retiring and when. If you are a recipient, you may want advice about whether the timing looks voluntary.

Pensions, long marriages and the rule of 65

If part of a pension was already divided as property, counting the same pension income again for support is known as double-dipping. Under Boston v. Boston, as summarized in the guide, the payer must prove what part of the pension was already divided. The burden then shifts to the recipient to show hardship or need. Divided pension income should be removed from both parties' incomes or neither, and the guide recommends calculating with both full and undivided pension income.

Length of the relationship matters too. Under the SSAG's without-child-support formula, support is indefinite, meaning with no end date but subject to variation and review, when the relationship is 20 years or longer or under the rule of 65. That rule adds years of relationship to the recipient's age at separation and applies if the total is 65 or more. It does not apply to marriages under 5 years. Where child support is also involved, the with-child-support formula sets duration by a length-of-marriage test and an age-of-children test, the longer of the two applying, and initial orders are usually indefinite, with time limits typically coming later on variation or review. In long or late marriages, retirement with a drop in payor income can justify termination or a time limit.

Death, agreements and the limits of the guidelines

Under the Family Law Act, unless the court orders otherwise, a support order ends on the death of the person receiving support. Arrears owing before that point are not affected.

Under the Family Law Act, a spousal or partner support agreement cannot vary an existing spousal or adult interdependent partner support order. To change an existing order, the usual route is a court application for variation.

The SSAG are not law, although judges often base spousal support decisions on them. The guide's case examples also lean heavily on Ontario, so Alberta authority should be checked before relying on a specific case. Consent orders are assessed under the L.M.P. material change test, and specific finality clauses carry more weight than general ones.

What to do next

• Read your order or agreement for any wording about retirement, review or finality clauses.
• Note whether your pension is reduced or unreduced and your age, since this affects whether retirement counts as early.
• Gather records of any pension already divided as property.
• Talk to a lawyer before changing any payments, since a court has the power to vary, suspend or terminate an order.
• If you are drafting a new order or agreement, ask about a retirement review clause.
• Speak with a lawyer before applying or agreeing to anything.

A review clause or a court-ordered review at retirement avoids debate over whether retirement is a material change. Setting it out in advance gives both sides more certainty.

Frequently asked questions