In a decision released this week from the Supreme Court Family Division, Justice Lee Anne MacLeod-Archer ruled that a Sydney’s man decision to retire early did not equate to a significant material change in his ability to pay.
Colin MacLeod had asked the court to terminate spousal support that he and his former wife, Elizabeth MacLeod, agreed to in January 2010. The order did not include a termination date.
The order required MacLeod to pay his ex-wife $1,200 a month in spousal support. It also granted an additional $150 per month to Elizabeth MacLeod in the event Colin MacLeod could no longer continue to have his ex-wife listed as a dependent on his medical insurance.
Medical insurance for Elizabeth MacLeod was terminated in July.
The couple separated after 30 years of marriage. They have two adult sons. Colin MacLeod has since remarried while Elizabeth MacLeod is no longer able to work because of a workplace injury for which she receives benefits under the provincial worker compensation program. She also suffers a number of other health issues.
At the time the order was signed, MacLeod was working as a tradesperson in Alberta, earning more than $100,000 per year.
In support of his termination application, MacLeod said that since last year’s forest fire in Fort McMurray, he has been laid off twice and remains uncertain about the future availability of work.
He also contended that an eye stroke in 2015 has now robbed him of 50 per cent of his vision in one eye. Further, he claimed he needed to care for his ailing mother.
“In addition to these claims, Mr. MacLeod says his body is worn out and that he cannot work any other job. He considers himself retired,” wrote the judge, in her decision.
In reviewing case law on the issue, MacLeod-Archer said the court must be satisfied there was a change in the condition, means, needs or other circumstance of either spouse before granting termination or a variation.
The judge said case law also suggests that prior to retiring, payments to former spouses need to be considered and that the passage of time and reaching a particular age does not constitute a material change in circumstance.
“The desire to reduce debt and/or save money in anticipation of retirement does not constitute a material change in circumstance,” said the judge, adding reasons for early retirement are relevant as to whether there is a significant change in circumstance.
In her decision, MacLeod-Archer ruled there are several potential options for Colin MacLeod to generate additional income such as returning to work or finding other work in line with his skills and training.
She also noted he could sell a property he has in Alberta or rent it along with drawing on some investment funds.
“Ms. MacLeod has not recovered financially from the breakdown of the marriage to the same extent that Mr. MacLeod has,” ruled the judge, adding there was no evidence presented that Colin MacLeod was unable to work.
“Though he claims that his body is worn out, there is no evidence that Mr. MacLeod cannot work at all. I find that he retired by choice, not by reason of disability or lack of work,” said the judge.
The judge ordered the spousal payments to continue along with the $150 per month payment for medical expenses.