Lifetime Spousal Support Payments: Can They Be Changed or Terminated?
Pursuant to Section 30 of the Family Law Act, a party to a family law proceeding may be ordered to pay support for the other spouse. Section 33(9) of the Family Law Act sets out the factors for the determination of the quantum and duration of any support obligation. In some scenarios, a party may be required to pay their spouse support “for life”. This can cause serious issues, especially if the payor spouse begins earning significantly less income compared to when the amount of support was calculated. An example of this can be seen in the recent Ontario Court of Appeal case of Haworth v. Haworth, 2018.
In Haworth, the parties entered into minutes of settlement after a divorce judgment in 1991. The husband was ordered to pay $4,000 per month in spousal support for the rest of the wife’s life. This calculation was based on the husband’s income of approximately $250,000 to $300,000 annually at the time. The husband subsequently retired at the age of 72, and his annual income was reduced to $65,000.
In 2017, the husband brought a motion to vary the divorce judgment to eliminate the spousal support. The motion judge agreed with the husband and reduced the spousal support payments from $4,000 to $1 per month, based on the husband’s decreased income and the wife’s decision to not seek employment since the separation. The wife appealed the motion judge’s decision. The appeal was heard at the Court of Appeal for Ontario, and a decision was issued on December 20, 2018. The Court of Appeal held that the motion judge erred in reducing the support payments to $1 per month, which was effectively a rescission of the support provision.
The appellate court agreed that the support payments had to be reduced because the husband’s lowered income was a material change in circumstances. However, the appellate court ruled that the motion judge should not have considered the wife’s decision not to seek employment when reducing the support payments. It was held that the wife was entitled to rely on the support payments since she believed she would be receiving them for life when the support order was made. She was entitled to rely on that belief.
Though in the interest of fairness, requiring the husband to pay $4,000 a month in spousal support when his income was reduced to $65,000 seemed a bit ridiculous (that would be nearly 74% of his gross salary going towards his ex-wife from more than 25 years ago). Instead, the appellate court found an equitable solution that required the same percentage of the husband’s salary to be paid to his wife as spousal support, rather than keeping the amount fixed at $4,000. Thus, the husband was ordered to pay $850 per month in spousal support going forward, for the remainder of the wife’s life.
This shows the court’s willingness to adjust support payments so that they seem fair to both parties, but it also shows the court’s inclination to stick with the original terms of a spousal support agreement. If the minutes of settlement say that support shall be payed “for life”, then the courts are predisposed to upholding such a provision. Certain material changes in circumstances can result in an altered support arrangement, but the decision in Haworth shows us that if you are ordered to pay spousal support to your ex-spouse for life, you shouldn’t expect to escape that obligation by simply taking a pay-cut.