It’s okay to retire if you’re creaky and over the hill. But if you’re still young-ish and somewhat spry, and if you have obligations to pay spousal support, you’d better think twice. For example, if you’re a spring chicken of only 51, and all that’s wrong with you is sleep apnea, hemochromatosis (too much iron in your blood, so you have to “blood let” every now and again), and an irregular heartbeat — none of which prevent you from working — and your ex-spouse is disabled and can’t work, well: you’re not allowed to retire. Fifty-one is the new eighteen.
A reminder of this legal principle comes in a recent decision from the Ontario Divisional Court, where a man suffering from the afflictions listed above, and who served 30 years as a police officer and was therefore eligible to retire at 51 with a full pension, was told by the court he couldn’t. (Well he could, but he’d still have to pay the same amount of spousal support as he was paying before he retired.)
He had asked for a reduction in his payments because his impending retirement would cause a dramatic drop in income: from the $122,707.92 per year he was earning as a Detachment Commander, to $74,477.00 annually from his pension. The lower court judge agreed, ruling that just because his ex-spouse was too sick to work (due to chronic pain and chronic fatigue) this didn’t translate into lifelong spousal support for her. As the judge put it: “illness does not equate to a never-ending support entitlement.”
The appeal court strongly disagreed, and with disdain: “In our view,” they ruled acidly, “a payor is not entitled to write himself a ticket to a life of idle leisure at the young age of 51, abdicating his spousal support obligations in the process, simply because he has earned the right to a full pension.” (emphasis added)
They even cited another case where the payor was 62 and tried to retire. No way. “Many people dream of retiring ‘early,’ ” ruled that judge, who then proceeded to stomp on the dream. “There is not a set age at which people today expect to cease working. Many successful people find that they can afford to stop work before they reach the age of 65. Others continue on well into their seventies and even longer.” So basically, if you’re paying spousal support, you can’t retire by your own choice. The choice must be made for you, by your decrepitude. Those TV ads for “Freedom 55” were nothing but a cruel joke.
Of course, every case is different, and spousal support payments may indeed be reduced or eliminated if circumstances change materially, in the right way. For example, if the support recipient moves in with a billionaire, and there is no “compensatory” money still owing — that is, money meant to compensate for, say, a career sacrifice made in order to raise children — then spousal support will most likely be stopped. But if the only change occurring is that the payor wants to retire because they can, not because they must, then they had better not count on it. As the Supreme Court of Canada said in 1999: “Marriage, while it may not prove to be ’till death do us part,’ is a serious commitment not to be undertaken lightly. It involves the potential (emphasis in original) for lifelong obligation. There are no magical cut-off dates.”
Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator.