Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"

Retirement will often constitute a material change in circumstances.  For the paying spouse, it usually means less income is available to pay support.  For the receiving spouse, it usually means less support is needed to supplement a retirement income.  Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event.  Under section 17 the ''[[Divorce Act]]'', you have to apply to vary on a material change in circumstances.   

The danger lies in just assuming the court will vary spousal support when you retire.  Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support.  Why would this happen?  Well, it depends on a few central considerations:

*First, does the paying spouse have to retire – mandatory retirement or it is medically necessary?  In these circumstances, the court is most likely to grant some relief.

*Second, can the receiving spouse also retire?  If he or she also has retirement income, perhaps spousal support is no longer necessary or appropriate.  Such may be the case where, for example, the parties each have a pension, or the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.

*On the other hand, if the receiving spouse is not working and has not yet reached pensionable age under CPP, cutting off spousal support may leave him or her without adequate means of support.  This can happen where, for example, the paying spouse wants to take early retirement.  It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger.  The paying spouse might have to retire later.  The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire him- or herself.

In most cases, if retirement is an issue, the parties will be best off seeking to mediate a solution, or applying to court before they have made any irrevocable changes in their employment.