Court File and Parties

Court File No.: FS-17188-10-0001 Date: 2025-08-20 Ontario Superior Court of Justice

Between: Jacinthe Grenier, Applicant – and – Louis Tremblay, Respondent

Counsel: Self-represented, noted in default Kimberly Kenney, for the Respondent

Heard: August 7, 2025

Reasons for Decision on Uncontested Trial

K.E. Cullin J.

Overview

[1] This matter appeared before me for an uncontested trial. The respondent has brought a motion to change, seeking to terminate his obligation to pay spousal support. He argues that there has been a material change in circumstances namely, his retirement.

[2] The applicant has not filed responding materials however she has served an unsworn financial statement on the respondent which suggests that the spousal support she receives from him is her primary source of income.

Summary of the Facts

[3] The applicant is 69 years of age, and the respondent is 66 years of age. They were married on September 26, 1992, following a 3-year common law relationship. They separated in 2009. They are the parents of one child, age 31, who lives independently.

[4] The applicant presently resides in Val D'Or, Quebec. It is the respondent's evidence that she resides alone in a basement apartment in her brother's residence and that she is not employed. Her unsworn financial statement discloses a monthly income of $3,889.64, of which $3,000 is spousal support and the balance is from an unknown source. Given her age, it is reasonable to infer that it is either CPP retirement benefits, OAS benefits, or a combination of both. Her financial statement discloses no assets or savings, and one small debt.

[5] The respondent, until recently, was employed by Dumas Mining. He retired on September 30, 2024. He does not have a pension per se but is at an age where he is eligible for CPP retirement benefits and OAS benefits; there is no evidence before me that he has applied for either. He has also accumulated significant savings through his employment that he intends to use as a source of income; it is his evidence that most of those savings were accumulated post-separation. Finally, he and his brother are receiving "living inheritance" funds from their mother, which he has also invested or intermittently drawn upon as a source of income.

[6] Pursuant to the Order of Justice MacDonald, dated October 29, 2012, the respondent presently pays $3,000 per month in spousal support. On the evidence before me, it appears that he owes no support arrears.

[7] The order also required the respondent to maintain employment-related benefits and insurance coverage for the benefit of the applicant. As a result of his retirement, the respondent no longer has extended health benefits or life insurance coverage through his employment. The only remaining insurance coverage that he has now consists of accidental death and dismemberment insurance.

[8] Upon the parties' separation, the respondent assumed all the matrimonial debts and the applicant received an equalization payment of $72,000.

[9] The respondent also advised the court in his evidence that it is his intention to apply for a divorce following the completion of this motion.

The Law

Family Law Rules

[10] Pursuant to Rule 15(5) of the Family Law Rules, a party seeking to change a final order may do so by serving and filing a motion to change. Pursuant to Rule 15(9), a party that does not agree to the change is required to serve and file a response to motion to change within (30) days of service.

[11] If a party fails to respond to a motion to change, the following consequences apply:

a. The party is not entitled to any further notice of steps in the case, except service of an order issued in the proceeding.

b. The party is not entitled to participate in the case in any way.

c. The court may deal with the case in the party's absence.

d. A date may be set for an uncontested trial.

[12] On an unopposed motion to change, the court may either make the order requested, require one or both parties to file additional materials; or require one or both parties to come to court. The court may issue directions regarding any additional oral or written evidence that is required or make any other order the court considers necessary.

Length of Marriage and Entitlement to Spousal Support

[13] In Fisher v. Fisher, 2008 ONCA 11, at paras. 105-106, the Court of Appeal noted the following framework from the Spousal Support Advisory Guidelines ("SSAG"):

a. A short-term cohabitation or marriage is one of less than 5 years;

b. A medium-term cohabitation or marriage is from 5 to 19 years;

c. A long-term cohabitation or marriage is 20 years or longer. However, a medium-term cohabitation/marriage becomes a long-term one if the parties' years of marriage, plus the age of the support recipient at the date of separation, equals or exceeds sixty-five ("the rule of 65").

[14] An indefinite duration of spousal support is considered to be appropriate following the breakdown of a long-term marriage. The rationale is that, after a long-term marriage, the dependent spouse is often of an age that makes it difficult to achieve economic self-sufficiency. This same rationale applies to the rule of 65: Fisher, at paras. 35, 106.

Material Change of Circumstances and Retirement

[15] In Boston v. Boston, 2001 SCC 43, [2001] 2 SCR 413, the Supreme Court of Canada considered the impact of retirement on a party's entitlement to receive and obligation to pay ongoing spousal support.

[16] In Boston, the parties separated following a long-term marriage in which the husband was the sole income-earner and the wife worked at home carrying for the parties' children. Upon separation, the equalization of net family property included the husband's pension; at that time, the husband continued to be employed and contributed to the pension post-separation.

[17] Upon retirement, the husband applied to vary spousal support. He sought to reduce support to consider only the income he was earning from the unequalized portion of his pension. The court agreed, issuing a thorough decision discussing the concept of post-separation double-recovery. While the court held that the entitlement to spousal support should be assessed flexibly having regard to the individual circumstances of each case, including considerations of hardship and need, it also found that double recovery should be avoided as a general practice. Spouses are expected to draw on their assets post-retirement to achieve self-sufficiency.

Discussion

[18] The respondent relies on the decision in Boston in support of the proposition that his retirement has triggered a material change of circumstances that warrants not merely a reduction, but a termination of his obligation to pay spousal support. The respondent submits that the applicant ought to rely upon her equalization payment to support herself. He requests that support be terminated as of the date of the order.

[19] Alternatively, the respondent argues that support should be varied to allow him to either: (1) pay a lump sum of spousal support now after which support is terminated; or (2) pay a reduced amount of support on a time-limited basis after which support is terminated.

[20] While I agree that the respondent's retirement has triggered a material change of circumstances and that a variation of spousal support is appropriate, I cannot agree on the evidence before me that support should be terminated or time limited.

[21] The parties separated when the applicant was 53 years of age. At that time, they had been residing together for 20 years, 17 of which were as a married couple. Whether one considers the 20-year cohabitation or the rule of 65, this was a long-term marriage, which weighs in favour of a support order of indefinite duration.

[22] It is not lost on me that the applicant has not engaged in this proceeding to advocate for her own ongoing support, notwithstanding that she was personally served with the motion to change and is aware that the respondent is seeking not simply to vary support but to terminate it. She has put no evidence before the court regarding her current income or her need for support.

[23] To the credit of the respondent and his counsel, they have been candid in confirming that, to the best of their knowledge, the applicant is not presently working, has not re-partnered, and is residing in her brother's basement. They have also acknowledged receipt of the unsworn financial statement of the applicant which is included in the respondent's Trial Record.

[24] The evidence and information before me satisfy me that the applicant continues to rely financially on the support of the respondent. The applicant is not employed. It appears that her only other source of income is approximately $889.64 per month, likely from government benefits. The $72,000 equalization payment that she received in 2009 is certainly not sufficient to sustain her throughout her retirement.

[25] The evidence also confirms that most of the respondent's substantial retirement savings were accumulated post-separation and were not the subject of equalization.

[26] The respondent submits that, if the court is inclined to award support, it should be based upon an imputed life expectancy of 19 years, and an amortization rate for his retirement savings of $52,000 annually. He submits that this would result in spousal support in the range of $1,181 on the low end, $1,378 at the mid-point, and $1,575 on the high end. He does not provide a basis for either his imputed life expectancy or his proposed amortization rate.

[27] According to his financial statement, the respondent's savings total $1,181,108.44 as of the date of his financial statement on October 24, 2025.

[28] Using the McKellar Structured Settlements life expectancy calculator, the respondent's life expectancy is 18.6 years: McKellar Structured Settlements Inc. "Life Expectancy Calculator." Calculators. Accessed 19 August 2025.

[29] Using the Mackenzie Investments investment withdrawal calculator, assuming 3 percent inflation and a 4 percent rate of return, an investment of $1,181,108.44 will yield an annual income of $70,000 over a period of 19 years: Mackenzie Investments. "Investment withdrawal calculator.". Accessed 19 August 2025.

[30] This calculation does not consider the fact that the respondent is continuing to receive funds from his mother. It also does not consider the fact that he is now eligible to receive both CPP retirement benefits and OAS benefits.

[31] As of January 2025, the average CPP retirement benefit is $844.53 per month (the maximum is $1433 per month). The OAS benefit for ages 65 to 74 is $727.67: Government of Canada. "Maximum Benefit Amounts and Related Figures - Canada Pension Plan (2025) and Old Age Security (January to March 2025).". Accessed 19 August 2025.

[32] In my view, this is a more realistic and reasonable amortization rate for the respondent's retirement savings for the purpose of calculating spousal support. At this level of income, and assuming that the applicant's current annual income other than spousal support is $10,675.68, the range of spousal support pursuant to the SSAG is $1,483 on the low end, $1,730 at the mid-point, and $1,978 at the high end.

[33] On the evidence before me, I find that an appropriate amount of spousal support given the respondent's material change in circumstances and the applicant's ongoing need is the mid-point of $1,730 per month.

[34] Given the parties' long-term marriage, I am not prepared to time-limit spousal support however, this order is not intended to preclude the respondent from applying to vary support in the event of a further material change in circumstances.

[35] The respondent does not believe that the applicant has applied for a CPP credit split. For the sake of clarity, a CPP credit split, if one has not occurred, would constitute a material change in circumstances as it would give the applicant access to another source of income. Such a material change would not necessarily terminate spousal support however, at minimum, it could result in a further reduction. The amount of the applicant's CPP retirement benefit would have to be quantified.

[36] As a result of the respondent's retirement, he no longer has extended health benefits or life insurance. If he is still eligible for accidental death and dismemberment insurance on his credit cards, it will do little to indemnify his spousal support obligations. I will therefore be vacating the requirement that he maintain these benefits but will instead order that his ongoing spousal support obligations shall form a first charge on his estate.

[37] No costs will be ordered with respect to this motion. Although the applicant did not respond to the motion, she also did not oppose it. The process was necessary given the relief sought by the respondent. The applicant is of limited means, and it is not in the interests of justice to require her to bear any of the respondent's legal costs to reduce her support.

[38] For the reasons given, I hereby make the following orders:

Orders

[1] Paragraph 1 of the Order of Justice MacDonald, dated October 29, 2012, shall be varied to provide that commencing September 1, 2025, and continuing on the first day of each month thereafter, the respondent, Louis Tremblay, shall pay spousal support to the applicant, Jacinthe Grenier, in the amount of $1,730 per month.

[2] The spousal support payable pursuant to paragraph (1) of this order shall be reviewable in the event of a material change of circumstances, which may include an application by either party for a CPP credit split if one has not already taken place.

[3] Paragraphs 9, 10, and 11 of the Order of Justice MacDonald are vacated however, for as long as spousal support is payable by the respondent to the applicant, that obligation shall form a first charge on his Estate.

[4] There shall be no costs ordered with respect to this motion.

[5] The respondent shall forthwith serve a copy of this order upon the applicant by regular mail at her last known mailing address.

The Honourable Madam Justice K.E. Cullin J.

Released: August 20, 2025