“The courts have said that where there is an existing support obligation, retirement must be reasonable and for a valid reason: Smith v. Smith, 2013 ONSC 6261 (S.C.J.) at 59.
Generally speaking, unemployment or underemployment cannot be deliberately created to avoid a support obligation: Smith, at para. 60, citing Dishman v. Dishman, 2010 ONSC 5239, 94 R.F.L. (6th) 217 (S.C.J.), and Muirhead v. Muirhead, 1995 CanLII 627 (BC CA), [1995] B.C.J. No. 1088, 6 B.C.L.R. (3d) 229, 14 R.F.L. (4th) 276 (B.C.C.A.).
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In Smith v. Smith, Gordon J. considered the concept of early retirement and opined that “[t]hat concept applies to premature retirement on a reduced pension for the purpose of defeating a legitimate support claim.”: Smith, at 65. While the concept of early retirement may mean somewhat different things in different contexts, it usually connotes a situation where the employee has made a voluntary decision to elect premature retirement. That is, the effective decision-maker is the employee. Here, in stark contrast, the effective decision-maker was Fiat Chrysler, whose decision to pull all work from Comber Tool, effectively sealed the fate of the business. In that vein, this is clearly not a case of early retirement.
Neither is this a case of voluntary retirement, as has been considered by the courts in cases like Dillman v. Dillman – a case much replied upon by the applicant wife (although subsequently reversed on other grounds on appeal) – where Harris J. concluded (in the context of a summary judgment motion) that “Mr. Dillman’s voluntary retirement does not trigger a material change of circumstances of a kind which would substantially diminish the weight of the original separation agreement.”: Dillman v. Dillman, 2019 ONSC 6249 (S.C.J.), at para. 39, reversed in part, 2021 ONSC 326, 51 R.F.L. (8th) 21 (Div. Ct.).