Court Rejects Application to Terminate Spousal Support Due to Early Retirement

This decision is not surprising, it is merely one of the many cases where an ex-husband paying spousal support voluntarily retires and then asks the court to terminate his spousal support obligation. In McPherson v. McPherson 2019 BCSC 933, the retiree was 60 years old and had 24 years of contributory service, thus earning an unreduced pension of $2,300 a month. His ex-wife’s share of the pension was $800 a month.

The parties were married for just over 20 years and were divorced in 2005. Their mediated settlement terms were incorporated into the divorce order and compelled Mr. McPherson to pay spousal support of $1,200 a month with no end date.

However, oddly, there was a provision that he could bring on a review application in 2007 in the event of a material change in financial circumstances. He brought an application to terminate support in the spring of 2007 and his former wife sought an increase in support, however, both applications were dismissed and he continued to pay support.

The Court learned that the marriage had been a traditional one with the wife working as a hairdresser at the outset of the marriage but later remaining at home to care for children. At the time the support was negotiated Mr. McPherson earned $56,000 per annum. At the date of his 2019 application he had retired from a position that paid him $112,000 per year. The Court remarked on his good health and his stated desire to spend time training rescue dogs.

The Court confirmed that “Law Courts have no power to compel people to work” but also stated that if a healthy individual with a spousal support obligation retires at an earlier-than-expected age, the question to be answered is “Is that decision reasonable in the circumstances?”

The Court held that given Ms. McPherson’s ongoing entitlement to compensatory support, and Mr. McPherson’s age, health, occupational history and other circumstances, his decision was unreasonable and unfair.

The Court also recited Professors Rogerson and Rollie, from the Spousal Support Advisory Guidelines: The Revised User’s Guide April 2016, as follows:

“When will a retirement be described as “early”? The courts are not always clear. For our purposes, an “early” retirement is either a retirement on a reduced pension or a retirement on a full or unreduced pension before 65 years of age, in the absence of health issues or other special circumstances. If the court sees the early retirement as “voluntary” and not necessary or reasonable, then it is likely that spousal support will not be changed. …”

There will be many more of these retirement cases over the next decade and word to the wise: Voluntary retirement before the age of 65, where there are no health issues, but a mere wish to “stop and smell the roses” will not fly with the BC Supreme Court. In fact, I have argued strenuously for judges to accept the retirement of individuals between the ages of 66 and 72, with mixed results.

Lawdiva aka Georgialee Lang

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