Grey Divorce spousal support variation and Grey Divorce spousal support termination cases are particularly thorny for both a payor who may no longer be able to pay due to retirement but also the recipient who worries about paying their living expenses without spousal support. How do you terminate spousal support?
In the recent case of Hague v. Hague 2022 BCCA 325 the BC Court of Appeal recited the principles needed to vary an order of spousal support when the paying spouse retires. Note, early retirement is an issue courts look at very hard and even turning 65 does not mean retirement will lead to a reduction or termination of spousal support.
To see BC’s leading case on high net worth spousal support where the court awarded our delighted client $100,000 per month support, where the paying spouse was over 65, read about our record win here.
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How do you terminate spousal support?
The new Hague decision allowed a husband who had originally been ordered to pay spousal support after a 35 year long marriage to cancel his spousal support obligation once he turned 66. The court found his retirement was reasonable after he and his ex-wife divided property equally in a Consent order ten years earlier and after he had paid total support of $360,000. Notably, after his retirement the ex-spouse’s capital assets and incomes were roughly equivalent.
Grey Divorce Spousal Support Termination 604 602 9000
Here are the key takeaways on how Grey Divorce spousal support variation works and an expllanation of: How do you terminate spousal support?:
[9] The judge considered the reasonableness of Mr. Hague’s decision to retire. He endorsed the following passage from the Spousal Support Advisory Guidelines: The Revised User’s Guide (Canada, Department of Justice: April 2016) (“SSAG”) at p. 101:
When will a retirement be described as “early”? The courts are not always clear. For our purposes, an “early” retirement is either a retirement on a reduced pension or a retirement on a full or unreduced pension before 65 years of age, in the absence of health issues or other special circumstances. If the court sees the early retirement as “voluntary” and not necessary or reasonable, then it is likely that spousal support will not be changed.
[14] The standard of review with regard to support orders is highly deferential. This Court should only intervene if it finds “a material error, a serious misapprehension of the evidence, or an error of law”: Hinz v. Davey, 2022 BCCA 232 at para. 33, citing Hickey v. Hickey, [1999] 2 S.C.R. 518, 1999 CanLII 691 (S.C.C.) at paras. 10–12. The alleged error determines the standard of review: Hinz at para. 33.
[15] In this case, Ms. Hague alleges that the judge failed to give sufficient reasons for his decision to terminate spousal support. A failure to give adequate reasons to permit appellate review is an error of law reviewable on a standard of correctness: R. v. Sheppard, 2002 SCC 26 at para. 28; Harrison v. Haramati, 2022 BCCA 302 at para. 18.
[25] Termination of spousal support is a form of variation. Section 17(7) of the Divorce Act sets out the objectives of an order varying spousal support:
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[30] Applications to vary or terminate spousal support are assessed under a two-stage framework:
1. Under s. 17(4.1) of the Divorce Act, before making a variation order, the court must be satisfied that there has been a change in “the condition, means, needs or other circumstances” of either former spouse. This requires the applicant to establish a material change in circumstances since the making of the order sought to be varied.
2. Once the material change threshold is met, the court must determine what variation is appropriate in light of the change in circumstances. A court “should limit itself to making only the variation justified by the change.”
(Rozen v. Rozen, 2016 BCCA 303 at paras. 19–23, citing L.M.P. v. L.S., 2011 SCC 64 at para. 47; Beninger v. Beninger, 2019 BCSC 366 at para. 50.)
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What qualifies as a material change to vary a grey divorce spousal support award? And, how do you terminate spousal support?
[33] A material change in circumstances is a change that, “if known at the time, would likely have resulted in different terms”: Willick v. Willick, [1994] 3 S.C.R. 370, 1994 CanLII 28 (S.C.C.) at p. 688; see also L.M.P at para. 32. A material change is one that must not actually have been contemplated when the spousal support order was made: L.M.P. at paras. 66–67. However, a material change may have been objectively foreseeable when the support order was made: L.G. v. G.B., [1995] 3 S.C.R. 370, 1995 CanLII 65 (S.C.C.) at para. 51, citing Willick at p. 734; see also L.M.P. at para. 67. Accordingly, the fact that Mr. Hague’s retirement was objectively foreseeable when the support order was made does not preclude its being a material change.
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