Court rules “until death” means “until death”

Written on Behalf of Lex Arbesman Legal

There are many cases we cover in our blog that look at the legal nuances of everyday words or sayings. It’s true that many people find themselves in disputes before the courts because of disagreements on how a word or phrase should be interpreted. However, as we seen in a recent decision from the Court of Appeal for Ontario, sometimes a phrase means exactly what it looks like.

The background

The couple involved in the matter separated in 1985, following 17 years of marriage. They agreed on minutes of settlement in 1991, and a divorce judgment followed later that year. One of the conditions of the settlement was that the husband would provide the wife with spousal support payments of $4,000 per month “until death.”

The husband, who worked as a dentist made a comfortable living and made his spousal support payments regularly. However, in 2017 he brought a motion to change his spousal support obligations reduced from $4,000 per month to $1 per month. The reason he brought the motion is because he was entering into retirement and was about to experience a significant decrease in income (from about $300.000 annually to about $65,00 annually).

Lower court decisions

The case was first heard by a motion judge who ruled in the husband’s favour. The motion judge noted that the wife had failed to look for work during the years following the divorce, and could have made steps to mitigate her reliance on spousal support. This is the first “material change” brought up by the motion judge. The second material change relied on by the motion judge was the husband’s reduction in income.

The Court of Appeal weighs in

After analyzing the motion judge’s decision, the Court of Appeal held that the wife’s failure to seek employment since 1991 does not constitute a material change in circumstances. The court wrote, “The clear wording of the divorce judgment was that spousal support would continue to death. The (wife) was entitled to rely upon that judgment. The (husband) waited far too long to raise the (the wife’s) decision not to seek gainful employment until an age when she was effectively precluded from correcting the situation.”

However, the court did agree that the husband’s reduction in income did constitute a material change and did meet the threshold required to vary spousal support. As a result, the court held that the husband should continue to provide spousal support to the wife, but the amount he is required to pay was reduced to an amount consistent with the Spousal Support Advisory Guidelines.

At Arbesman
Hamilton LLP
, our experienced family lawyers can guide you through the
process of making post-separation
and post-divorce amendments
. Contact us online or at 416-481-5604 to
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