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 can mean 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 can apply to vary if you can show that retirement does in fact represent a material change in circumstances.  But applying to vary, or reviewing, is not the same as changing.

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

*Second, how would this affect the receiving spouse?  Can they also retire?  It is one thing if the receiving spouse still has a good job, or also has, or will have retirement income.  In either event, perhaps spousal support is no longer necessary or appropriate.  Such may be the case where, for example, 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 or cannot yet retire, or is otherwise still dependent on that spousal support cheque, cutting off support may leave them in trouble, financially.  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 also.

If a pension has been divided, you should also check the order or agreement that divides it.  Sometimes, there are limitations on when the pension holder can take retirement.  Early retirement may not be allowed, for example, as it often results in less pension income – for both parties.

Also be wary of orders or agreements that say spousal support may be reviewed on the retirement of the paying spouse.  As we say above, reviewing is not the same as changing – and certainly not the same as terminating.