Schulstad v Schulstad, 2017 ONCA 95
This case demonstrates how courts determine spousal support obligations in light of retirement. Ultimately, the appeal judge significantly reduced a doctor’s spousal support obligations to reflect his upcoming retirement.
The couple originally separated in 1990 after 24 years of marriage and one child. The husband practiced as a general surgeon and the wife was a homemaker. In 1996, the wife was granted a spousal support order which required the husband to pay CAD $7,500 monthly, which was indexed to the Consumer Price Index for Canada (over time with inflation it was pro-rated to $10,000 per month) and maintain insurance policies naming her as the benefactor. This large monthly payment was due in part to the wife’s compensatory claim – she had supported her husband through medical school and stayed home with their child so he could advance his career. When the order was initially made, the husband was earning CAD $275,000, though his practice was in Kentucky.
In 2014, the husband applied to terminate spousal support by 2016 because he intended to retire. The application judge agreed with the husband that his retirement was a material change in circumstances and at the age of 69 and 70 respectively, the lost advantages experienced by the wife had been recovered. Spousal support was therefore terminated.
On appeal, the court’s findings aligned in many ways with those of the trial judge. The appeal judge found that the husband’s application to terminate spousal support was not premature because it was reasonable to expect that he was going to retire when he said he would. Furthermore, at the age of 70 there was no reason to think that he was acting in bad faith (i.e. simply retiring to get out of paying support).
Similarly, the husband’s retirement was correctly identified by the trial judge as a material change in circumstances because his retirement would greatly reduce his income to between USD $35,000 and $40,000. His retirement was taken into account when the original order was made in 1996 and therefore the wife was not entitled to indefinite support.
However, the Court of Appeal did find fault with the trial judge’s decision to terminate support because this decision was based largely on incomplete financial information. The trial judge did not calculate the husband’s income in Canadian dollars in order to conduct an accurate comparison of each party’s finances. There was also a lack of clarity surrounding the husband’s investments and the returns that they would yield into his retirement.
Therefore, the judge ruled that the termination order should be overturned. He ordered a reduced spousal support payment of CAD $1,000 per month and left it to the application judge to determine the remainder of the issues.