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In a recent decision, the Ontario Court of Appeal (ONCA) was asked to consider whether a wife’s failure to seek employment for over 20 years post-divorce constituted a material change sufficient to vary her former husband’s spousal support obligations from $4,000 per month to $1 per month.

Background of the Case

The couple had married in 1968 and separated in 1985. At the time of their divorce, the husband was a successful dentist, earning between $250,000 and $300,000 per year. The wife did not work outside of the home, other than some bookkeeping work for her husband’s dental practice during the marriage. Prior to the separation, the wife had successfully undergone treatment for breast cancer.

In 1991, the parties entered into a settlement agreement which formed part of their Divorce Judgment. As part of the settlement, the parties agreed that the husband would pay the wife spousal support in the amount of $4,000 per month for her lifetime.

The Superior Court of Justice Decision

In 2017, the husband brought a motion seeking a number of orders, including a variation of his spousal support obligations. At over 70 years of age, the husband had retired from his dental practice, and his income had changed significantly. In retirement, he earned approximately $65,000 per year, plus some additional income from an open investment. The husband’s motion argued that his support obligations should be terminated based on the material change to his income, as well as the fact that his former wife had failed to seek other employment in the many years since their divorce.

The husband argued that the wife had received a staggering amount of support over the years, especially given that they had been divorced longer than they had been married. In turn, the wife pointed to the 1991 settlement, asserting that her husband had agreed to pay the support for her lifetime, perhaps taking a gamble on her health prospects given her medical history.

The judge found that there had been two material changes to the circumstances, warranting a variation in the husband’s support obligations. The first of which being the change to the husband’s income post-retirement, and the second being the wife’s failure to seek other employment following the divorce:

The case law is clear that there is no “duty” on the wife to become self-sufficient.  However, there is an obligation on her as a spousal support recipient to make reasonable efforts to contribute to her own support.

The judge ordered that the wife’s support entitlement be reduced from $4,000 per month to $1 per month.

The Ontario Court of Appeal

The wife appealed the decision, arguing that the original settlement agreement was not susceptible to amendment, as it had clearly stated the payments were to continue for her lifetime. The ONCA disagreed that the agreement could not be changed, but it did find that the original judge had erred in two ways:

  1. In considering what constituted a “material change” in circumstances, and
  2. In failing to give deference to the original agreement between the parties.

With respect to the material change argument, the ONCA did agree that the husband’s retirement and subsequent income reduction reflected a material change in circumstance. However, they disagreed that the same could be said about the wife’s failure to seek or secure employment in the intervening years since the divorce:

We disagree that the appellant’s failure to seek employment since 1991 constitutes a material change in circumstances. The clear wording of the divorce judgment was that spousal support would continue to death. The appellant was entitled to rely upon that judgment. The respondent waited far too long to raise the appellant’s decision not to seek gainful employment until an age when she was effectively precluded from correcting the situation.

What Does This Mean for Support Awards Going Forward?

This decision highlights the importance of contemplating long-range circumstances when designing and drafting a separation agreement. In the case at hand, the couple had not contemplated future changes in income, retirement, or any expectations that the wife to mitigate her own expenses. When entering into a separation agreement or divorce settlement, it is important to take all potential considerations into account in order to allow for future adjustments as circumstances may dictate. An experienced and skilled family law lawyer will be sure to point out relevant concerns in order to draft a document that allows for flexibility and reasonable amendments as needed in order to protect their client’s interests.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

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