Early Retirement, Interrupted (by Divorce)

February 14, 2018
Alex Boland

Retirement. Long golden days stretching late into the evening. Time to focus on golf, painting, or crossword puzzles. Time to appreciate friends and family, freed from the constraints and stresses of regular work.

For most of us, retirement is the end of the long and winding road of work. We struggle through difficult days knowing that someday (and hopefully someday soon!) we will have time to ourselves to pursue our true passions. We work long hours, and dutifully save, with the knowledge that if we persevere, our latter years will be our best ones.

Unfortunately, divorce can derail these plans, and the issue of early retirement is one that frequently arises in family law cases, particularly when it comes to spousal support. On one hand, the spouse paying support (the “payor”) has a not unreasonable desire to enjoy the fruits of his or her labours, and Courts will generally not force a person to work him or herself to the grave. On the other hand, the recipient spouse is often highly dependent on the payor’s income, and an early retirement threatens the recipient’s own financial security and plans for the future.

So, how do the courts typically respond when a payor former spouse wishes to be relieved of his/her obligation to provide spousal support because he or she wishes to retire? Let’s find out:

What Have the Courts Said?

British Columbian courts take a highly fact-specific approach, looking to the circumstances of both parties and each of their legitimate expectations.

Cramer v. Cramer

A typical case is the case of Cramer v. Cramer. This case featured a 30-year-long, traditional marriage, with the parties having four adult children. At the time of their separation, Mr. Cramer was 52 and Ms. Cramer 50. After a short trial, Mr. Cramer was ordered to pay spousal support on an “indefinite basis”, meaning that it would continue to be due and owing until a Court ordered otherwise.

Some six years later, Mr. Cramer returned to Court seeking an end to spousal support. He had adult-onset diabetes and had been encouraged by his doctor to seek an early retirement (a fact known by all parties at the time of trial). He had sold his share of the matrimonial assets, and his income was primarily made up of periodic payments related to that sale as well as CPP benefits. Continued support payments would require Mr. Cramer to use his share of the matrimonial assets to support Ms. Cramer, who enjoyed her share of the assets in the form of a house.

Ms. Cramer, on the other hand, had not found sufficient employment and had pursued impractical employment. Her spending was profligate, her debts mounting, and her home and lifestyle outside of her means.

The Court permitted Mr. Cramer to retire. He was no longer able to “shield his ex-wife from the harsh winds of economic reality”. Ms. Cramer’s dilemma was largely a result of her own failure to plan for Mr. Cramer’s incipient retirement.

Gajdzik v. Gajdzik

By contrast, in the case of Gajdzik v. Gajdzik, the Court refused to bring a spousal support order to an end where the paying spouse threatened to retire early. In this case, the parties shared a long and traditional marriage, in which Mr. Gajdzik worked outside the home and Ms. Gajdzik did not work. Some seven years after trial, Mr. Gajdzik applied to terminate support.

 Mr. Gajdzik had worked in a physically demanding job for many years, and stated that he could not continue to do it. Ms. Gajdzik remained unemployed and had not upgraded her education. Mr. Gajdzik also stated in evidence that he did not feel he should be required to pay for Ms. Gadjzik, as she had not retrained or sought employment.

The Court refused to terminate the support, and in doing so illustrated a number of obstacles that often trip up applicants applying to terminate:

a.       Mr. Gajdzik referred to “health reasons” justifying early retirement, but failed to provide medical evidence.

b.       Mr. Gajdzik raised his desire to retire late in the day and not at the outset of his application to vary, suggesting that his reasons to retire were not genuine.

c.       Mr. Gajdzik’s stated desire to retire was, in part, to end spousal support: where the early retirement appears to be driven by a desire to terminate support, the Court will view it as “deceit” and be reluctant to terminate.

Takeaways

These are just two cases in an area of family law that is fact-specific, unpredictable, and often hard-fought. Although there is no way to guarantee an end to spousal support and an early retirement, paying spouses can take certain steps to improve the chances of a happy, youthful retirement:

1.       If the early retirement is driven by medical advice or necessity, the applicant should provide clear and cogent medical evidence in the appropriate form.

2.       The earlier the early retirement is raised, the better. If you have an intention to retire early, that intention should be made clear either in the separation agreement or in the evidence laid at trial. The possibility of an early retirement will be much greater if raised in advance and clearly contemplated by all concerned.

3.       Do not retire early without notifying the other party well in advance. Courts are not fond of parties who take steps unilaterally, particularly where those steps may undermine the circumstances of a potentially sympathetic individual.

4.       The intention to retire early must be genuine and not motivated by a desire to end support. If the Court believes you are retiring early in order to reduce support, the case is practically lost.

Alex Boland
Alex Boland
Lawyer (Kelowna/Vancouver)
Connect Family Law

As a lawyer with Connect, Alex has a genuine love for the practice of family law, which always shows both in how he works and how he relates to his clients.