Since the enactment of the Child Support Guidelines in 1997, the monthly amount of child support is primarily based on the income of the non-custodial parent, the number of children in the family and which province the children reside in. Tables are published that set out the amount that the non-custodial parent must pay to the custodial parent. The table amounts are for the children’s ordinary expenses such food, clothing and shelter. For example, a non-custodial parent of two children in Ontario who earns $40,000 per year will pay to the custodial parent a table amount of $570 per month. The custodial parent’s income becomes relevant where the children have special or extraordinary expenses such as daycare, extracurricular activities or private school tuition. In that case, the parents share these costs in proportion to their incomes.

In the 2010 case of Dishman v. Dishman, the husband accepted an early retirement buyout from General Motors which had the effect of decreasing his income from approximately $85,000 to $38,000 per year.

The Dishmans were married for 20 years later. After they separated in 2000, a final order required Mr. Dishman to pay his wife $750 per month in spousal support.

Nine years later in 2009, when Mr. Dishman was 52 years, his employer General Motors announced that it was closing its plant where he worked for 28 years. He was offered an early retirement incentive. Mr. Dishman could have continued to work for a few more years. However, if General Motors went bankrupt before that date, then the offer would no longer be available. Mr. Dishman accepted the offer and retired on June 1, 2009.

To convince Madam Justice Nolan to terminate spousal support, Mr. Dishman explained that his pension with General Motors had already been equalized with his wife when they settled their affairs in 2001. Mrs. Dishman kept the matrimonial home. The amount owed by Mrs. Dishman to Mr. Dishman for his share of the matrimonial home was off-set by the value of Mr. Dishman’s pension at the time. In calculating the amount of Mr. Dishman’s pension at that time, the parties valued it based on a retirement age of 59 years, as opposed to the 52 years when he actually retired. Stated another way, Mrs. Dishman argued that a significant portion of her husband’s pension was not equalized at the time of the agreement or court order.

Madam Justice Nolan relied on a series of past decisions such as Moffatt v. Moffatt (2003) that established that where there is early retirement that will severely prejudice the recipient spouse, the court may assign income as though the person had not retired. The judge also considered Bullock v. Bullock (2007) which held that a support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and therefore avoid his or her spousal support payment obligations.

Her Honour found that Mr. Dishman’s retirement was considerably earlier than anticipated, and Mrs. Dishman had good reason to rely upon support being provided for several more years. She stated that there is no reason why Mr. Dishman might not and cannot be expected to seek new employment opportunities and that Mrs. Dishman was in need and had a limited ability to earn more income.

In conclusion, the court found that this was a long marriage, that spousal support was payable because Mrs. Dishman was in need and should not be expected to bear all of the negative financial consequences of Mr. Dishman’s early retirement and, accordingly, the spousal support payments of $750 per month were to continue until 2016.

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