Spousal Support when the Payor is Retired

Spousal support is a remedy offered by courts to recognize any economic advantages or disadvantages related to a marriage and its breakdown. There are three ways to demonstrate entitlement to spousal support including:

• Contractual;
• Compensatory; and
• Non-compensatory or Needs-Based.

You may wonder, however, what happens when they payor of spousal support is retired? Can there be an order for spousal support despite the payor being on a fixed income such as CPP or OAS benefits?

The Supreme Court of Canada Case of Boston v Boston, 2001 SCC 43 has provided some clarity on this very issue at para 61:

There is no reason per se that spousal support cannot continue past the date of retirement of the pension-holding spouse. However, several factors must be considered in making that decision. On retirement, the pension-holding spouse may apply to vary the support order if his ability to pay support is compromised (see Linton, supra, at p.31, and Rivers, supra at para 17). The decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances pursuant to s.37(2) of the Family Law Act.

The payee spouse’s need and the payor spouse’s ability to pay are always factors which a court considers when determining spousal support (see s. 33(9) of the Family Law Act). Another issue is the extent, if any, of “double recovery”.

In summary, the answer to the question posed above, as many answers in law are, is a resounding “IT DEPENDS”. Whether or not a payor who is retired will be ordered by a court to pay spousal support will depend on:

• Entitlement to support;
• The payee spouse’s need; and
• The payor spouse’s ability to pay.

This complicated scenario has been more recently considered in the Alberta case of KH v AJS, ABQB 427 where the payor spouse was retired. He had previously lived off severance but made no efforts to return to work thereafter. Therefore, his only current income sources were from CPP and OAS. Despite this, he was ordered to pay his ex-wife $1,200/month in spousal support based on her need.

Whether you are the potential payor or payee of a support order, it is in your best interests to consult with a lawyer about your options and entitlement.