Kirschbaum: It’s time to update the law on spousal support and retirement

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In Ontario, and Canada in general, we are lucky to have a progressive and well-thought-out family law system. Our law is child-centered and evolves with the times. However, there is one area of ​​family law that is in desperate need of reform: spousal support law, particularly in relation to retirement.

When two married people separate, an evaluation is usually made as to whether there is a right to spousal support. In our system, the right exists in three categories. It can be compensatory. That means that the right arises because one person made financial sacrifices for the benefit of the other, as would be the case in a long-term marriage in which one person stays at home to raise children while the other focuses exclusively on the family. her career. The right to receive support may also be based on need, as would be the case where, although neither party has made financial sacrifices, one of them does not have enough money to support themselves. And the right can also be contractual.

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Our system is complicated by the fact that, unlike child support, we do not have mandatory guidelines for spousal support. Determining the right is a discretionary exercise for the judge. So is determining how long spousal support will be paid and in what amount. We have Spousal Support Counseling Guidelines, but their implementation is not mandatory. The lack of clearer rules about how long a support order can last creates tremendous uncertainty in litigation, making it difficult for attorneys to predict the correct outcome or resolve cases. The situation is not helped by the fact that on some issues existing cases contradict each other, making it difficult for lawyers to accurately predict outcomes.

Enter retirement. In our current system, the only way to change spousal support at retirement, if an agreement cannot be reached, is to litigate. Existing cases are unclear as to whether reaching age 65 constitutes a change in circumstances that would justify a change to spousal support. Sometimes it does and sometimes it doesn’t. A person who retires and whose ex-spouse does not agree with a change of regime must go to court to determine his situation after he has retired. And they have to accept the financial risk that the judge will reject their assessment of the situation, which means they may pay not only their own legal fees, but those of their ex-partner as well. This is an unacceptable level of financial risk for a population with limited resources. And there are ways to solve this problem.

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We could codify the treatment of RRSPs, pensions and other retirement savings that have been divided at the time of separation, making clear how retirement income can be calculated for support purposes. We can make it mandatory for courts to set fixed end dates when making maintenance orders and to comment, at the time of separation, on the extent to which they have addressed the issue of retirement. We can clarify how the law operates regarding serious illnesses and their impact on spousal support. And we can devise a referral system where, in the event of a dispute over maintenance in the context of retirement, people can ask the courts to have the issue decided one or two years before they retire, not after. People have the right to know how the court will resolve their support payments before they give up their earned income. It is not fair that in the current system one has to pull the trigger and walk away before the court rules on their rights.

The spousal support laws in place today were designed in another era. Enough time has passed to see the ways in which they do and do not meet the needs of contemporary society. “Gray divorce” is on the rise. Reforming the spousal support law to bring more clarity to retirement cases would help the vulnerable, reduce the court backlog, and give us another reason to feel good about how family law works in our country.

Alexandra KirschbaumOwner of Kirschbaum & Co. in Ottawa, he has been practicing family law since 2013.

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