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Grey divorce is all about the math

Legal Report: Family Law
|Written By Jennifer Brown
Grey divorce is all about the math
Illustration: Jeannie Phan

A few years ago Steven Benmor found himself in divorce court representing an 82-year-old client seeking to end a long-term marriage. After decades of living with the same man, she was divorcing her abusive husband. “They had fought over the years but this time he hit her and she said ‘screw you’ and went to the police. He was arrested and removed from the home. The children came out of the dark to help her and took sides. That created the divorce,” he says.

It used to be the seven-year itch, a mid-life crisis around 40, or empty nesters were the three typical groups seeking divorce. Increasingly though, a fourth category has emerged over the years — those over 55 who no longer want or feel the need to stay in unhappy marriages. “In some respects it’s quite shocking,” says Benmor of Benmor Family Law Group in Toronto. “When I have somebody the age of 75 or 80 walking into my office and saying, ‘I’d like to divorce my husband.’ I can’t help but be floored and think what is going on here? These are grandparents. Why is a grandparent divorcing?”

He chalks it up to societal changes that include people living longer, delaying retirement, and generally pushing life events until they are older. “Some start thinking, ‘I’m 55, do I really want to be with her/him for the next 30 years?’”

Whatever the reason, the numbers in the 55-plus group are up, says Rick Peticca of Shulman Law PC. “If I think of my cases at least 40 to 50 per cent of them are the grey divorces,” he says.

“Usually it’s that they’ve grown apart or there is that one unresolved issue they have let fester. They’ve stuck it out for the kids but there’s been a problem that was never resolved and they let it fester in a silent fashion. You know that old advice that suggests if there’s a problem you should talk about it and not go to bed angry? The grey divorce can’t be any better example to support that.”

While few women or men let their hair go grey anymore, the “grey divorce” phenomenon is a category that is a ticking time bomb, says Benmor. “There will be more people divorcing after the age of 60 — the kids are out of the house and parents are looking at each other, contemplating their retirement and one wants to travel and the other wants to stay home and knit sweaters,” he says.

Karon Bales, of Bales Beall LLP, says it reminds her of a joke that goes like this: “It’s like the old lawyer who keeps going to the office and says to their spouse: I may have married you for life, but not for lunch.” Bales sees women making the decision to divorce more often these days and it can come as a shock to their spouses who didn’t see it coming. It can also mean the shock of selling the family home and dividing the RSPs that have been built up over the years. “I did a divorce for a couple in their 70s in December. They had been separated for six years and just couldn’t figure out how to divide everything. In another one the couple had just sold the family business and she decided she wanted out — it took him completely by surprise.”

Others jokingly point to Cialis and Viagra as the culprit — men decide they want a second chapter with someone new. On the flip side, women are in the workforce longer and have their own income and decide they don’t have to stay in an unhappy marriage. “My grandmother was a grey-haired lady at 76. My mother at 76 still works,” says Cheryl Goldhart, of Toronto family law firm Goldhart & Associates. “This is probably the first generation of women who don’t have to stay in a marriage.”

Divorce presents financial challenges at any age but for those over 55 it can be compounded by the demands of looming retirement and any plans that had been made leading up to retirement, says Julia Cornish, of Sealy Cornish Coulthard in Dartmouth, N.S. She is seeing an increasing number of clients married more than 25 years seeking divorce. “Certainly I’ve been dealing with clients who are coping with retirement issues at the same time they are dealing with divorce, and to a degree that I wouldn’t have in my early years of practice,” she says.

Recent pension legislation has made handling pensions easier. It allows a pension to be divided at source through a pension administrator. However Cornish says she finds it “tricky” to deal with later-in-life separations because support payments may hinge on pensions not yet “in pay.”

“Do you tell someone they should retire, and wait to go back to court and then say now please reduce my support? Or do you tell them to go to court and say you plan to retire in a year and want be proactive about what the support obligations will be in a year and risk the court saying, ‘Ought you be retiring in a year?’” she says. “It’s the spousal support piece that I find makes it all so difficult. The Divorce Act encourages people to do what they can to work towards self-sufficiency but how much can be expected if a marriage ends when someone is in their late 50s after a 30-year marriage?”

Predicting how long support payments should go is difficult, so often there is a desire for people to make a deal for a lump sum payment or a promise to pay a fixed amount of money for a defined amount of time. “The risk of course is that the person who promises to pay has a change in circumstances and they are stuck with that amount,” says Cornish. “Or a late-career promotion gives them more money and the other person won’t benefit from it.”

From a lawyer’s point of view, Cornish says if you want to make a divorce simple, do it when both people are retiring in a circumstance when they both agree it’s appropriate to retire because dividing assets in half is relatively uncomplicated. “But of course life never happens in that way,” she says. “One of the early shocks when it hasn’t been thought through is when someone who has planned all along to retire at 63 may find the impact of divorce at 59 means that can’t happen now. There’s extra pressure on everyone involved in this — the lawyers included — because there isn’t the time to pick up and do over,” she says. “It’s a lot trickier if you’re going through divorce at 63 and whatever you lose in the divorce you have a limited time to make up again. Or if you make a decision that turns out to be wrong — how much time you have to rectify the decision?”

She points to the Supreme Court of Canada’s decision in Boston v. Boston, which looked at the general principle that double dipping — expecting someone to pay support over money flowing from a pension already divided — is to be avoided where possible.

Family law lawyers also point to the 2012 Carrigan v. Carrigan Estate case in which Ronald Carrigan died unexpectedly at age 57. He left his entire estate, worth about $2.4 million, to his wife (from whom he had been separated for 12 years) and his two daughters. At the time of his death, he was not divorced from his first wife, and in an eight-year common law relationship. He had also not changed his pension beneficiary to his common law wife from his first wife and children — they received his death benefits.

The argument after his death was: Who should have received the pension — the wife at time of separation or common law spouse? The common law spouse, Jennifer Quinn appealed and eventually the Ontario Divisional Court conducted its own analysis of the dependant support claim, ultimately concluding she was entitled to a lump sum payment of $750,000. She had three separate hearings to determine her entitlement to a share of Carrigan’s estate, and got three very different results.

“It was a catastrophe,” says Benmor. “The takeaway is when the Mr. Carrigans of the world walk into your office for a grey divorce, shake him and say, ‘Buddy, don’t die without taking care of everything.’ Do a co-habitation agreement with your spouse and do a proper separation agreement with your ex — lock it up. Get the wills done and everything you have to do — you don’t want to be looking down from heaven and seeing what happened to the Carrigan family.”

Bales often suggests her older clients use mediation services of retired judges. “They can be very good at working with these older couples and especially when there isn’t enough money to go around for a court battle,” she says.

Goldhart says older couples are just less likely to do “knock ’em sock ’em” court battles. “They just want to get it done,” she says. “Life’s too short and at a later age there’s less in front than there is behind.”


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