Where the client is the payor, he/she assumes that this is a “no brainer.”
“Obviously if I retire, I can stop paying support, right?”
Not necessarily the case.
Retirement does not necessarily justify a termination or even reduction in support. Sometimes it does, sometimes it doesn’t.
Consider the following scenarios:
Scenario 1
- the support payor is 55 years old, and has three children ages 8, 10, and 12
- the payor is in good health
- the support payor works at a bank and earns $150k per year, and pays the table amount under the Child Support Guidelines of $2,661 per month
- the support payor is eligible to retire with an unreduced pension of $60,000 per year. The table amount at this level of income is $1,168 per month.
If the payor retires and asks a judge to reduce the child support from $2,661 to $1,168, what will the judge say?
In my view, there is no question that the judge would say “no” to this request. The decision to retire is unreasonable, given the payor’s young age, his good health, the fact that his children need support and the voluntary nature of the retirement.
Scenario 2
- the support payor is 65 years old.
- the children are adults and there is no child support obligation.
- the support payor and his former spouse separated 20 years ago, and he has been paying her spousal support since that time.
- the support payor has diabetes and suffers from depression
- the support payor earns $75,000 per year while working, but this will reduce to $35,000 after retirement.
In my view, a judge is very likely to reduce or terminate spousal support under these circumstances. The decision to retire is reasonable given the payor’s age, the number of years he has been paying spousal support and his health.
At the end of the day, it comes down to “reasonableness.” Here are some of the factors the court looks at to determine reasonableness:
- a later retirement age (i.e. 65) is more reasonable than an early retirement age (early to mid 50s)
- it will usually be unreasonable to retire when you are paying child support. In other words, it is more important to support the children than it is to enjoy the “golden years.”
- The longer that you have paid support, the more your retirement will be seen as reasonable. And vice versa: if you only started paying support 1 year ago, retirement is likely to be seen as unreasonable.
- The worse your health, the more reasonable is your retirement; the better your health, the less reasonable is your retirement.
- if you are retiring to frustrate the support order, this will be seen as unreasonable.
For more information on this and other issues of interest in family law, contact James Herbert (jherbert@chappellpartners.ca)