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Voluntary Retirement and Spousal Support – It’s a Free-ish Country

Brett M. Stuart

Associate

Tel:       403.692.5212
Email:  bstuart@vogel-llp.ca

It is sometimes difficult to explain the basis for compensatory spousal support, at least in terms of doing so in a way that permits a potential support payor to both understand and accept the legal realities that flow from the history of their marriage and marriage roles performed within that marriage.

In the recent case of McPherson v. McPherson, 2019 CarswellBC 1640, Justice Baird reminds us of what was said by the British Columbia Court of Appeal in Zacharias v. Zacharias (2015), 66 RFL (7th) 1 (BCCA), an explanation of compensatory support that is fulsome and helpful:

“During a marriage, a couple typically operates in a financial partnership. Each partner will take on roles that support mutual goals. If one partner makes economic sacrifices, it will usually be with a view to improving the financial position or quality of life of the family as a whole. Upon the breakdown of a marriage, the situation of mutual benefit is substantially disturbed. The financial sacrifices that a spouse has made will, absent some form of compensation, be borne exclusively by that spouse in the form of diminished earning capacity. Equally, the financial benefits conferred on the other spouse will, absent compensation, exclusively benefit the advantaged spouse. The goal of compensatory support is to ensure that, going forward, the economic consequences of choices made by the couple during the course of the marriage will be shared equitably”.

In McPherson, the Husband’s spousal support obligation had no end date. Rather, either party was entitled to make application for a review upon a material change in circumstances. Mr. McPherson applied to the court to terminate support due to his choice to retire at age 60. Justice Baird noted that while it is a free country and the courts do not have the power to compel people to work, Mr. McPherson’s decision to retire was unreasonable in light of his spousal support obligation. That unreasonableness fails to meet the “material change” burden and so Justice Baird dismissed Mr. McPherson’s application, with costs. It is worth noting that Mr. McPherson’s decision to retire was determined to be entirely personal and lifestyle motivated. Mr. McPherson was in good health and fully capable of continuing to work and pay support.

Interestingly, given that Ms. McPherson’s position for purposes of the application was that support should continue until she becomes eligible to receive her Canada Pension Plan payments at age 65, Justice Baird gave Mr. McPherson some relief in ordering that support would end on the first day of the first month following Ms. McPherson’s 65th birthday.

This case is a good reminder that voluntary retirement has its limits in relation to support obligations.

2019-11-21T10:52:23-07:00November 26th, 2019|

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