When a Material Change in Circumstances arises …

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The Feldstein Family Law Group recently published its summary of an interesting Ontario family law case, Taber v. Taber, published in the law reports.

The case deals with a motion brought by the Husband to vary the amount of spousal support.  It was argued that his retirement from employment was a material change in circumstances contemplated by the couple’s separation agreement that would trigger a revision to spousal support payable.  Further, it was maintained that because his pension had previously been included in the equalization of property calculations, it should not be treated again as income for purposes of calculating the revised spousal support amount.  The Wife argued that during negotiations over the separation agreement, it was understood that the Husband would retire at age 65.  In the event, he retired at 55.  Feldstein writes:

In this case, the Court had to focus on the fact that the Equalization calculation included a value for the Husband’s Pension based on a retirement age of 65 even though the Husband actually retired at 55. Therefore, the difference between the value of the pension at the retirement age of 55 and 65, should to be taken into consideration when determining the Husband’s monthly income for support purposes. This difference worked out to be of $136,564.00 or 44.62% of the Husband’s total pension. The Court ultimately held that the concept of Double Recovery was not at issue for the differential amount of $136,564.00 as this amount had not been equalized. […]

Once the Court had determined the Husband’s monthly income for support purposes, they had to turn their attention to the Wife’s corresponding need for support. As mentioned the parties’ Separation Agreement stated that the Wife beginning to cohabit with an individual in a relationship resembling marriage was a material change in circumstances that could lead to a support variation. The Wife had been living with a new partner for 7 years at the time of this Motion and had admitted that the situation was financially beneficial to her. In addition, although the Wife had health issues, the Court determined that this did not inhibit her ability to work at all. The Court also considered the fact that the Husband’s income was actually slightly less than the Wife’s. Based on the above factors, the Court determined that the Wife did not have a need for support at this time.

The Court ultimately […] determined that [the Husband] should be required to pay the Wife nominal support in the amount of $1.00 per month based on the fact that the couple was in a long-term marriage of 22 years.

You can read the entire summary here.