Spousal support orders are made on three bases:
In long term relationships, often when the relationship breakdown occurs, spouses are close to retirement age. The question is: How does retirement affect a spouse’s entitlement or ability to pay spousal support and what does the court do when a spouse plans to retire?
In the recent case of Greco v. Greco, 2017 BCSC 172, Madame Justice Dorgan of the BC Supreme Court addresses the law on this question. She reviews a number of cases which have considered the effect of retirement on spousal support orders. Below, you will find a brief review of the cases she summarized.
In order to be entitled to vary a spousal support order, a spouse must be able to show that there has been a material change in circumstances. The question is whether retirement meets that threshold.
Justice Dorgon reviews the law and states:
 A payor spouse who has reached the expected age of retirement, or who retires for medical reasons, may fairly be relieved of an obligation to continue spousal support payments, or have that obligation reduced. However, a payor spousal may not be relieved of their spousal support obligations if the retirement is voluntary and the retirement was motivated by the desire to avoid maintenance payments: see Young v. Young, 2011 BCSC 887 at paras. 38-39.
 In Boston v. Boston,  2 S.C.R. 413, 2001 SCC 43, the majority held that there is no reason per se that spousal support cannot continue past the date of retirement of the pension-holding spouse. The applicant will be required to demonstrate that there has been a material change in the circumstances of the parties and the reduction in income following retirement may constitute such a material change.
 But while retirement may constitute a material change in circumstances for the purposes of varying an order for spousal support, the courts will carefully scrutinize a voluntary retirement. In those cases, the individual circumstances of each of the parties should be considered: see Szczerbaniwicz v. Szczerbaniwicz, 2010 BCSC 421 at para. 21; Gajdzik v. Gajdzik, 2008 BCSC 160 at para. 35.
 In Szczerbaniwicz, Punnet J. wrote that if a party’s retirement was motivated by the desire to avoid a maintenance obligation, the court will most likely impute income. Furthermore, he said that:
 … Even if the party’s motivation was not to avoid maintenance, the court will likely impute income so long as the party has the ability to earn an income.
 If the retirement is not voluntary because of economic circumstances, medical reasons, or an employer’s actions and the payor is unable to work, the court will tend to reduce the maintenance payable; otherwise, if the payor is still capable of earning an income, his application to terminate or vary spousal support will likely fail: Bentley v. Bentley, 2009 CanLII 3779 (Ont. S.C.J.); Bullock v. Bullock, 2007 BCSC 318, 36 R.F.L. (6th) 150 at para. 7.
 In Szczerbaniwicz, Punnet J. cited Vennels v. Vennels (1993), 76 B.C.L.R. (2d) 69, which explains that a court must consider the circumstances of the retirement carefully and ensure that the payor has not been prompted by deceit to avoid support orders when voluntary retirement is advanced as a reason for seeking a reduction in maintenance. In the often quoted passage from Vennels, Coultas J. said:
Retirement of a payor under a maintenance order usually results in a significant reduction of income; that is so in this case. Courts are not guided by legislation to enquire into the circumstances of retirement. Courts have no power to compel people to work. However, courts should, in the interests of justice, refuse to consider a reduced income resulting from retirement to be a material change in circumstances justifying a variation of a support order, where a payor spouse has intentionally put him or herself out of the money in order to frustrate a maintenance order. Any such deliberate self-induced impecuniosity constitutes deceit.
The cases Justice Dorgon refers to are as follows:
Justice Dorgon goes on to summarize the authorities as follows: “ Clearly the authorities reflect that caution is required in order to ensure that the goals of spousal support are not eliminated by an early or voluntary retirement.”
If you or your spouse is receiving or paying spousal support and you expect that retirement is imminent, please give contact us for more information and for a free consultation.