“Both parties worked very hard during marriage. They both worked long hours and engaged in demanding physical work. The crux of Rick’s argument is that at age 60, after working hard for so many years, he ought to be able to stop and enjoy the rest of his life. He says after almost 13 years of paying spousal support, he has fully satisfied his obligation and is therefore seeking an order terminating it.
There is considerable jurisprudence on the question of when early retirement, that is prior to age 65, may entitle a payor spouse to a reduction or termination of an existing spousal support obligation. Where the retirement is involuntary, due to health reasons, cogent medical evidence is required. See for example: Cosette v.Cosette, 2014 ONSC 4667 (CanLII), 2014 ONSC 4667, aff’d 2015 ONSC 2678 (Div Ct.); Hesketh v. Brooker, 2013 ONSC 1122 (CanLII), 2013 ONSC1122; and Walts v. Walts, 2013 ONSC 6787. Where the retirement is involuntary because the employer demands it, the court must consider the payor’s alternative income earning capacity and overall wealth in determining whether there is a material change in the conditions, means and other circumstances which justifies a reduction or termination.
There are many cases which are factually similar to this one; the early retirement is strictly voluntary. In Bullock v Bullock, 2004 CanLII 16949 (ONSC), Corbett. J. at paras 9 and 10 expresses the issue as follows:
Many people dream of retiring “early”, although there is not a set age at which people today expect to cease working. Many successful people find they can afford to stop work before they reach the age of 65. Others continue on well into their seventies and even longer. The legal question for this case, then, is not whether Ronald should retire at age 62, but whether this personal choice should be viewed as a quote material change of circumstances quote for the purposes of payment of spousal support.
I have already determined that, in this case, the language in the consent order meets the threshold for a review but the general principles in Bullock, Cosette and Hickey v. Princ regarding early retirement do apply here. A payor spouse cannot side-step support obligations by unilaterally leaving the workforce early. As stated by the Divisional Court in Cosstte, at para. 13 citing Bullock, also at para 13: “The support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations.””