The recent decision of the Divisional Court in the case of Cossette v. Cossette 2015 ONSC 2678 makes clear what many legal practitioners take for granted but those looking forward to retirement after years of hard work find shocking — that their spousal support obligations can continue even after they take early retirement.
In this case the husband payor, Robert Cossette, believed that by taking early retirement from his civil service job at the age of 55 his support obligations to his wife would come to an end. After the dismissal of his “Motion to Change” and an appeal of that dismissal to Divisional Court he learned that he was wrong. In upholding the decision of the court of first instance, the Divisional Court refused to consider his voluntary retirement from his job as a “material change in circumstances” that would end his support obligations. The court of first instance determined that one of the reasons he took early retirement was to stop paying spousal support, and the appeal court agreed that his decision did not constitute a material change; payors cannot and their spousal support obligations by leaving their jobs, even if it was pursuant to early retirement.
Neither the court of first instance nor the appeal court was at all concerned that Mr. Cossette had worked 33 years at his job, had always supported his two children, had paid support for 7 years following the separation,and that his wife was now working and earning the same amount he was being paid from his pension. Nor was the court was swayed by the argument that he took early retirement because of his lifelong battle with depression, which he argued prevented him from continuing to work. Indeed, the court commented that although he may have been stressed and/or depressed that he was paying spousal support, this is just one of those unfortunate realities of life.
There are several lessons here, the most important of which is that early retirement in no way guarantees the cessation of existing spousal support obligations. Those with lucrative defined benefit pensions that can begin to enjoy full benefits in his 50s may find that he is either forced to continue to work or must reach some financial settlement with his wife to end his support obligations. Either way, it means less money for his retirement.
The best way to ensure support obligations come to an end upon early retirement is to spell that out clearly in a separation agreement or a court order. However, that is often easier said than done because few support recipients who have had long-term marriages are prepared to agree to a support termination date, especially one that will ultimately be decided by the support payor. With Ontario’s aging population and its economy of haves and have nots, this is going to become an ever increasing problem.