RETIRE? – CAN I? WHEN IS ENUF, ENUF (SPOUSAL SUPPORT)?

We have had the benefit of some recent post-retirement spousal support cases. For some support payors, the landscape may not be quite as bleak as my previous blog post might indicate.

The Ontario Court of Appeal seemed to limit post-retirement spousal support obligations somewhat in Choquette The court rendered its judgment in this case on 17 April 2019. Here are the key facts:

• 15 year marriage; two children who were 13 and 6 at the date of the original 1996 trial. W out of work for 10 years during the marriage.
• H paid spousal support for 22 years.
• W not employed at the time of the original trial but planned to work or so she said.
• W had obtained a CMA accounting designation and a real estate license. Never used them.
• In anticipation of his retirement, H brought a Motion to Change in 2016.
• At Motion to Change [ie. this case] W claimed depression and disability but introduced no evidence on the point.
• At Motion to Change W now 62 years old with stale professional qualifications and irrelevant past professional experience. W argues that she simply cannot achieve self-sufficiency.

The motion judge and the appellate court held that 22 years of spousal support after a 15-year marriage with two kids was enough support to compensate for any disadvantages that the relationship roles may have foisted upon the wife. And that includes childcare roles. Factually in this case, the wife’s current economic hardship was found to be the result of her own less-than-admirable decisions and therefore not the further responsibility of the husband to redress.

Absent a stipulation in the original court order, spousal support is not intended to last “in perpetuity”. A disparity in resources is also not a ground to continue spousal support after such a long time.

With the Court of Appeal issuing such a judgment, it is not entirely surprising that the result was so favourable for the payor H in the Rokach case (decision released October 25, 2019) – Ontario Superior Court of Justice.

Here are the key facts:

• 21 year marriage; no mention of # of children but there appears to have been at least two kids.
• H paid spousal support for over 28 years.
• W retired in 2015 at age 68; H intended to retire at the end of 2019 almost age 72. (W now almost 72 as well.)
• Earlier orders allowed H to vary support if he suffered a catastrophic change in circumstances. Due to H’s severe health difficulties, parties agreed that the test had been met.
• Apart from his OPSEU pension and a motor vehicle, H has no significant assets; W has a net worth of $880,000 which includes a former matrimonial home worth 1.2 million dollars subject to a mortgage of $285,000.

The judge adopts Choquette: (para 33) “… whether spousal support is characterized as compensatory or not, the obligation to pay spousal support is not one made in perpetuity unless explicitly agreed to by the parties or ordered by the Court.” [author’s emphasis] The judge in Rokach also referred to the 2019 Angulo decision where a 28-year marriage saw spousal support terminate at 17 years (although that decision does not appear to be a retirement case).

The lack of sympathy for the W is apparent in these judicial comments:

Para 52: I do not find the presence of any economic hardship that would warrant a continuation of spousal support. Neither party has any dependents. The applicant is at liberty to draw upon the equity in, or sell, her home with a view to investing and/or living off those proceeds. She chooses not to, but her choice should not amount to an anchor dragging the respondent further downward. [author’s emphasis]

Without the Choquette and Rokach decisions coming to my attention, I would not have been quite so optimistic with respect to a payor’s chances of achieving zero spousal support going forward where there was a strong compensatory claim. Who is to say that 22 years of spousal support trumps a 15 year marriage? Who can say that 28 years of spousal support trumps a 21 year marriage? The answer now must be that provided you have the correct “facts”, you can indeed retire and be relieved of paying further spousal support.

Remember though that while there are legal principles and while an Ontario Court of Appeal decision is a very good thing to have in Ontario litigation of this type, each case is highly fact dependent. It would be prudent to consult with a family law lawyer before you do anything.