New concepts and principles in family law are always developing as society and demographics change. Recently these have included: pets as ‘dependants’ (not just property); ‘child-focused’ parenting arrangements, and; ‘Grey Divorce’. While the general trend in Canada is that the divorce rate is decreasing, world-wide, long term (ie. 20-year plus) relationships and marriages are increasingly ending in ‘divorce’. Why? The increase of ‘no fault’ divorce? Are ‘Baby-Boomers’ more prone to divorce as they are generally more financially secure than other generations? The influence of ‘social media’? Who knows. But the result is that ‘grey divorce’ is starting to affect more and more people later in life.
What is ‘Grey Divorce’?
So what is ‘grey divorce’? ‘Grey divorce’ simply refers to a demographic trend of an increase in separation and divorce by older couples after having been in a long- term (or second) relationship or marriage. This may alternatively be called ‘grey divorce’, ‘silver separations’, ‘silver or diamond splitters”, etc. Whatever the name or colour, ‘divorce’ later in life involves special considerations, especially regarding the family law concerns of financial (ie. spousal) support and division of family (and non-family) property. These concerns may be particularly relevant where there has been a significant accumulation of wealth (ie. ‘High Net Worth’) or continued high income earning post-separation.
Grey Divorce and Spousal Support
The overarching principle of spousal support is that it is designed to recognize and relieve the economic disadvantages and hardships of the breakdown of the relationship, and to assist both spouses to become economically self-sufficient within a reasonable period of time (federal Divorce Act s. 15.2(6)). It is not intended, necessarily, to be forever. But what about for a spouse, later in life, after a long-term relationship, having perhaps not worked outside the home for 30-40 years? How will they ever become ‘economically self-sufficient’? And what if the payor spouse is not working or has retired? How could they pay financial support? Does this mean the other spouse may have to pay spousal support even after they have both retired and no longer earn an income? In Smith v. Smith (2016 ABCA 376), the Alberta Court of Appeal ordered a husband (who had taken early retirement but still had the ability to earn income as a consultant) to pay his ex-spouse $6,000/mo. spousal support, holding (at para.’s 32-33):
“Cases decided after Boston caution against applying a rule against double recovery to deny a strong spousal support claim that is based on the means and needs of the parties. Courts have acknowledged the serious economic disadvantage often experienced by payees after long-term marriages… Here, the trial judge was alive to these concerns. The wife had not worked outside the home since their first child was born some thirty years ago, save for minimal reception work she found post-separation. Her evidence and medical evidence that her eyesight prevented her from taking on similar work in the future was accepted, and in any event such work would not provide sufficient monies to properly compensate her for her sacrifice and her actual needs.”
Grey Divorce and Family Property
But what about the family property accumulated by the spouses during their relationship and divided upon their separation and divorce? Shouldn’t this be used to financially support a dependant spouse until they can become ‘economically self-sufficient”? The overarching principle in division of family property is an ‘equitable’ (not necessarily ‘equal’) division of property (ss. 7&8, Alberta Family Property Act). In J.L.H. v. R.S.W. (2017 ABCA 98), the Alberta Court of Appeal awarded substantial ($9,000/mo.) interim on-going spousal support to the stay-at-home wife in a long-term marriage (the husband had retired prior to separation) despite the fact she had spent all but $200,000 of her half of a $5M property settlement and continued their previous extravagant living expenses including travel and luxury items for their children, holding (at para. 18):
“The division of matrimonial property and debt is a relevant factor in spousal support, because it is one factor in determining the ‘condition, means, needs and other circumstances of each spouse’. As stated in Moge at para. 849:
‘Equitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets or by a combination of property and support entitlements. But in many if not most cases, the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources.
There may be cases where the matrimonial property is of such a magnitude that no spousal support can be justified… However, in most divorces the matrimonial property division will reflect only one branch of the compensatory spousal support analysis. It will usually be necessary to make the matrimonial property division before any realistic assessment of the condition, means and needs of the spouses can be undertaken: … There will often, however, be another branch of the compensatory analysis relating to the impact that the marriage and its breakup will continue to have on the spouses post-separation. Property division is at most the beginning of the spousal support analysis, not the end of the analysis.”
Separation and divorce is difficult, no matter what stage of life it arises. Is it more difficult if it arises later in life, after having built a relationship, raising children, developing careers, and accumulating property? Maybe not – it’s always difficult, for everyone (including children).
Peter Graburn
FAMILY LAWYER
Peter is a senior family law lawyer with over 35 years of experience in complex, high-profile litigation in the areas of civil rights, aboriginal and family law. Peter acts in all areas of family law litigation, primarily in the areas of high conflict, high income, and high net worth separation and divorce.
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