Can Spousal Support End When the Payor Retires in Ontario?

If you pay spousal support and retirement is approaching, your income may be about to drop. It is natural to ask whether support stops the day you retire. The short answer is that it does not stop on its own, and you should not simply stop paying.

This article explains how courts generally look at retirement, what makes early retirement harder to rely on, how a divided pension affects the picture, and how a change is actually requested in Ontario.

Retirement is often a reason to ask for a change, not an automatic end

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

If you are divorced or divorcing, the Divorce Act lets a court vary, rescind or suspend a spousal support order, either retroactively or prospectively, on an application by either or both former spouses. If you are separated but not divorced, or were never married, a different law may apply, so how a change works for you is worth confirming with a lawyer. Under the Divorce Act, before varying an order the court 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.

When the court first sets spousal support under the Divorce Act, it considers each spouse's condition, means, needs and other circumstances, including how long the spouses cohabited, the roles each played, and any existing order, agreement or arrangement about support. How facts like these are weighed when someone asks for a change depends on your situation, so it is worth confirming with a lawyer.

Until a court changes the order, the existing terms generally remain in place. Whether your particular situation justifies a reduction, a suspension or an end depends on the facts.

Early or voluntary retirement gets a closer look

Courts closely examine early retirement. If the retirement is voluntary and not necessary or reasonable, a court may find there is no material change and leave support unchanged. Health problems can justify early retirement.

The recipient's side matters too. Recipients are expected to make reasonable efforts to contribute to their own support. Once a recipient becomes self-sufficient, support can be terminated, but courts often decide the recipient is not there yet and reduce support or set a future end date instead.

Pensions that were already divided

If part of your pension was already divided as property, courts try to avoid double-dipping. Support after retirement focuses on the undivided portion of the payor's pension, and the payor must prove how much was already divided.

Property division and support are separate things. Equalization of net family property is separate from support. That is one more reason to keep your property division paperwork and pension statements together before you apply.

Variation versus 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, and the terms of the review clause should limit what is reviewed. Check whether your agreement or order contains a review clause.

The Spousal Support Advisory Guidelines are not law, but judges often base their spousal support decisions on them. Even when guideline-style ranges are used on a variation or review, they should be used with considerable caution where complex entitlement issues arise. 'Indefinite' support does not necessarily mean permanent support. It means no time limit could be set when the order or agreement was made, and it stays subject to variation and review.

If your 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. This mostly matters to recipients, but it is worth knowing if you are the payor.

What to do next

Only a court can change an order. The Family Responsibility Office cannot change support terms. The process is 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.

When a court orders spousal support in Ontario, the order is automatically filed with the Family Responsibility Office, which collects payments from the payor and sends them to the recipient. How your payments are handled around a retirement depends on your situation, so it is worth confirming with a lawyer.

• Read your order or agreement for any clause about retirement or review.
• Gather income records, pension statements and any record of what was already divided.
• Collect medical information if health is a reason for retiring.
• Keep paying as ordered until a court says otherwise.
• Talk to a family lawyer about timing before you retire, not after.

Frequently asked questions