When a couple is going through divorce or separation, issues such as spousal support and child support can lead to bitter disputes. However, once an order regarding support is put in place, everybody involved can at the very least know what is expected of one another. When someone has an obligation to pay child support or spousal support, the amount paid is generally fixed unless the payor can demonstrate that there has been a significant change that warrants revisiting how much they should be paying. One such change can be retirement. While retirement doesn’t always impact child support payments, it can more often impact spousal support obligations since child support typically ends when the child becomes an independent adult, but spousal support can continue forever. A recent decision from the Ontario Superior Court of Justice looks at how retirement is considered when the retiring party has a spousal support obligation, and more importantly how important it is for parties to be prepared to share the factual details behind their positions.

Husband says he has retired

The parties were in a long-term relationship and had two children while together. At the time of the hearing the children were adults, so there were no issues concerning child support. However, the husband was looking to change his spousal support obligations that were determined in a separation agreement dated January 18, 2008.

The husband is now 66 while the wife is 65. The husband had a moderately high income and was paying a significant amount of spousal support (exactly how much he was paying, or how much income he made was not included in the decision).

The husband told the court that he had retired and as a result has very little income. He sought to terminate spousal support completely, stating that being made to continue to do so would create extreme hardship for him.

The wife opposed the husband’s request, stating that she still needs spousal support income to survive and that a stoppage of support payments would create extreme hardship for her.

The court noted that this is an extremely important issue and one that requires careful consideration since a finding would have a large impact on them.

Parties don’t have the facts ironed out

The court stated that the facts behind making a decision on a matter like this are important to have. In this case, the court also found there were credibility issues among the parties, and that their affidavits have not been tested. There had been no effort to prepare an agreed statement of facts, and it wasn’t until the hearing that it became apparent how unaligned the parties were.

The court stated it was important for the husband and wife to share the facts behind their request, stating

“in this case neither party has properly advanced their case.  Each of their materials are deficient in failing to properly set out certain fundamental aspects of their legal arguments.  They haven’t clearly set out where they agree and where they disagree.  And they haven’t done some very simple things which would have avoided this court date being wasted.”

What facts should the parties be prepared to discuss?

The court listed a number of questions that parties should be able to answer when appearing before the court. It proves to be very helpful and applicable to a wide range of legal issues.

  1. How many legal arguments shoud I raise?    
  2. Are some arguments stronger than others?  Should I focus on my strengths, or advance every conceivable argument I can think of?
  3. Are some arguments easier and less expensive to present?
  4. Do weak arguments undermine or distract from strong arguments?
  5. Are there things I can do to reduce the scope of the litigation, and reduce the resulting legal expense?
  6. Should I consider making some concessions on less important issues or topics, if it will allow me to present my more important requests more quickly and less expensively?
  7. Are there things the lawyers can do to explore the facts and reach certain agreements, so they will have fewer things to argue about once they are in front of the judge?
  8. Does my evidence prove my case and/or disprove my opponent’s case?

In this case, the court declined to hear the matter, and advised the parties to work on their positions before appearing again.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.

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