APPEALS – SPOUSAL SUPPORT – MATERIAL CHANGE – RETIREMENT – WHETHER APPLICATION PREMATURE

By March 27, 2017 Blog No Comments

In most cases, an application to vary support brought two-and-a-half years prior to the alleged change in circumstances would run counter to the fundamental principle that a material change must have already occurred in order for a court to have jurisdiction to vary a final order (at para. 28). There is a risk in such a case that the financial disclosure and other evidence in support of an alleged material change will be speculative due to its prematurity.

Here, following a 24-year marriage, the court made an order in 1996 requiring the husband to pay ongoing spousal support and to maintain insurance policies in favour of the wife. In January 2014, the husband, now aged 70, brought an application to terminate his support and life insurance obligations effective June 1, 2016, on the basis of a planned retirement. The husband’s application was granted and the wife, now age 69, appealed.

While the Court of Appeal would not endorse, as a general principle, the application judge’s encouragement of the early timing of the application to vary, this case was exceptional in that there was evidence to support the conclusion that the husband would indeed retire, that the subsequent change in his income would be very significant, and that there was sufficient financial information to permit the judge to determine that his retirement would be a material change (at para. 27). This ground of appeal was dismissed.

The judge also did not err in finding that the husband’s retirement and reduction in income was a material change in circumstances. While the husband’s retirement was within the court’s contemplation when making the order in 1996, the effect of that retirement was not considered in fixing the amount of support, nor was there any evidence on the record to permit an assessment of the financial impact of retirement (at para. 31). A determination that the wife was entitled to support “forever” could not foreclose the husband’s future application to reduce or terminate his support obligation upon a material change in his financial circumstances. The judge’s findings that the husband was sincere in his proposed retirement and intended to live frugally within his reduced means were available to her (at para. 32): Schulstad v. Schulstad2017 ONCA 95 (Weiler, Rouleau and Roberts JJ,A.).

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