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by Daniel Gloade on October 16, 2013

That was one of the central questions confronting the Honourable Justice Gordon in the case of Smith v. Smith, 2013 ONSC 6261.  In that case the Husband and support payor retired from his electrician job when he was 54. In spite of his young age, he was entitled to retire with a full pension because of his many years of service. The Wife and support recipient argued that the court should impute an income for the husband until he reaches the age of either 62.5 or 65 years.

Justice Gordon held, however, that a party can consider himself or herself retired for a legitimate reason when he or she is permitted to draw a full pension.  Justice Gordon also held the normal retirement age is not fixed but is determined by the Rule of 80.  The Rule of 80 states that one can retire when the number of years of service (time spent working for that employer) plus your age equals 80..

The Husband payor argued that the spousal support amount should drop because the Wife Recipient had an affair.  This amounted to spousal misconduct.  Spousal misconduct occurs if one party does something to essentially repudiate a marriage and the other party is blameless.  Spousal misconduct can reduce the amount of spousal support awarded.  Spousal misconduct is party of a provincial law called the Family Law Act.  Justice Gordon refused to apply the rule in the case before him.  First, the parties were requested a divorce.  Divorce is covered under a federal law called the Divorce Act.  The Divorce Act prohibits a judge from examining the reason a marriage failed.  Because federal statutes “trump” provincial statutes then the doctrine does not apply. Second, the Husband needed to specifically plead his intention to make that argument at the very beginning of the litigation.

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