Imposing a cap on the time spousal support is payable could clear up much of the confusion surrounding payors’ obligations, particularly when they enter retirement.
Spousal support: Family law’s messiest issue
For former spouses (and their lawyers), one messy area of family law is spousal support. Justice Canada’s Spousal Support Advisory Guidelines give us a starting point for negotiations, but anyone who has opened the document knows how complicated it can be to find a match for your individual situation.
Those separating after 20 years or more of marriage may be surprised that the guidelines provide for their spousal support obligations (or entitlements) to last indefinitely.
For shorter marriages, they at least contemplate an end date, but parties can attach only so much weight to the assessment. Since implementation of the guidelines is voluntary, negotiation is necessary and decisions are made on a case-by-case basis.
That’s in stark contrast to the Federal Child Support Guidelines, which are backed by provisions in both the Divorce Act and Ontario’s Family Law Act requiring court orders to be made in accordance with their instructions.
As the parties move on and their lives evolve, former couples with open-ended spousal support orders can try to amend the terms. However, unless the ex-spouses can reach an agreement, they’re forced to go back to court, where a judge will consider a fresh spousal support order if there has been a “material change” in circumstances, and other terms from the prior agreement or Court Order.
Either side could bring the motion to change, with payors typically arguing for a reduction or termination after a significant drop in income and recipients using their own hardships to justify a request for higher payments.
Retirement adds another wrinkle
The uncertainty around spousal support is most obvious when a payor makes their transition to retirement.
Splitting spouses often attempt to incorporate references to retirement and its effect on spousal support in their separation agreements by providing for a review of support once the payor reaches a certain age or stating that their retirement will be considered a “material change” in circumstances.
But drafting lawyers can offer no assurances that their agreements will be honoured by the courts since judges reviewing requests to change support obligations will make their own determinations based on a variety of factors, including how voluntary or early the retirement is, the incomes of both parties and their expectations at the time of the separation.
To complicate matters even further, couples attempting to factor retirement income into their spousal support negotiations must be aware of the risk of “double-dipping” — the term used to describe situations where one spouse receives an equalization payment to account for the division of the other’s pension, only to receive a further benefit when the income from that same pension counts towards their spousal support obligations.
In a landmark 2001 judgment, Boston v. Boston, the Supreme Court of Canada pronounced double-dipping “generally unfair,” but acknowledged that it cannot always be avoided. Depending on the precise facts of their case, recipients may be able to show that support is due on the portion of the pension income that can not be attributed to the earlier equalization, or that any double-dipping is reasonable in the circumstances.
The value of a fixed termination date
At first glance, a cap on the spousal support entitlement period sounds like bad news for recipients, but I would argue that everyone can benefit from the certainty that would come with a fixed termination date.
In my practice, I encourage clients to aim for agreements with an end date for spousal support payments, rather than open-ended obligations. When you have a set amount of spousal support payable for a finite period, everyone knows where they stand, allowing both parties to plan and budget for their own financially independent future based on a much more solid set of shared numbers.
Best of all, neither side would have to endure the expense and stress of heading back to court — potentially years after their separation — just to argue over the merits of one person’s decision to retire. In addition, this could help lighten the load on our already overburdened family court system.
Still, a cap on the spousal support payment period is just one idea to fix a particularly tricky area of family law. Making the spousal support guidelines mandatory would also improve the clarity and predictability of the process, and I’m sure there are plenty of other legislative measures that would make life easier for family lawyers and their clients.
If you have questions or need assistance with spousal support matters, we are here to help. Reach out to our team to discuss your situation and explore your options. We’re committed to providing you with the support and guidance you need to navigate this challenging area of family law.