Calling it splits

January 02, 2020
Signing a document.

When it comes to divorce, “70 is the new 30,” according to family lawyer Rick Peticca.

A recent survey by his Toronto firm Shulman Law, identified the 60-plus age group as the fastest growing segment of its clientele over the last decade, reflecting the continuation of a grey divorce trend suggested by Statistic Canada’s last look at marital status data. The agency found an increase in senior couples splitting had dragged the national average age of all parties at divorce gradually up between 1991 and 2008, with women leaping from 35.7 to 41.9 over the period, and men up from 38.3 to 44.5 years.

“People are living longer, but they feel younger inside, and they’re less worried about finding another potential mate,” says Peticca. “There’s usually a hidden build-up that takes place over many years without being addressed. Whether intentionally, or unintentionally, relationships are neglected, before things finally come to a head.”

Toronto mediator Marion Korn cites social changes that have resulted in the stigma associated with divorce plunge at the same time as female employment rates soared among the Baby Boomer generation as key to the trend, which is set to continue for at least the next decade. Korn is the co-author, along with financial planner Eva Sachs of 2013’s When Harry Left Sally: Finding Your Way Through Grey Divorce. “The Boomers are a bit of a bubble, and they’re slowly moving through that older demographic,” Korn says. “They have encountered a lot of unique circumstances that didn’t really exist before them. It’s also a generation that was somewhat self-centred. We think of Millennials as the me-first generation, but Boomers were the originals.”

Although each case has its own unique drivers, Lynn Kaplan, a Toronto divorce doula who coaches recent and prospective divorcees of all ages through the emotional and financial turbulence of a split, says her older clients are often recent empty nesters. “There are couples whose children leave and they look at each other, realize they have nothing in common, and wonder, ‘what am I still doing with you?’” she says. “Then you have the other group of people who didn’t want the upheaval of a divorce while their children were still at home. I had one client who was married for 48 years, but told me she’d known she wanted to leave since the kids were young.” She notes that “once they’ve seen the children off and those responsibilities are gone,” they feel like it’s time to get on with their own lives.

However they get there, couples who divorce when they are older are typically focused on different legal issues than those who split at a younger age, according to Ottawa family lawyer Stéphane MonPremier. “It’s mostly to do with finances and property. One of things that I enjoy about older clients is that there are none of the child-related issues you get with people in their 20s, 30s, and 40s.”

Ontario’s Family Law Act, like laws in other Canadian jurisdictions, requires the division of wealth accumulated between the date of a couple’s marriage and their separation, with an equalization payment usually owing from one spouse to another by the person with the higher net property value.

While it can be complicated to disentangle half a lifetime’s worth of accumulated assets, MonPremier says it generates nothing like the heat of a contested custody fight. “You get a lot of name-calling and sniping with younger couples,” he says, adding that divorces in later life tend to take on a more amicable character. “As people get older, I find them a little wiser and a lot more forgiving. They’re able to see the bigger picture much more clearly.”

For those who are inclined to act on any bitterness engendered by a split by digging in their heels and fighting over every little entitlement, Korn has only one piece of advice: don’t. “It’s a very inopportune moment to get into a heavily conflicted divorce, because there’s no time to replace your assets. If you’re throwing money at lawyers, it’s a bit like setting fire to it,” she points out. “At the end of the day, you’ve already accumulated most of your wealth, and you’re going to need it in the coming years. That’s why I tell adults whose parents are splitting up that the best thing they can do is to give them their support, and not to stir the pot.”


“When there are children and grandchildren, there is a desire to honour the family dynamic. People want to end the relationship in a way that allows them to earn and keep the respect of their children.” Eva Sachs


Alternative forms of dispute resolution, such as collaborative family law and mediation are popular with older divorcees looking for a gentler option than all-out war in the courtroom, according to Korn’s co-author Sachs, who says negotiated settlements are also conducive for an ongoing, functional relationship between former spouses whose ties are not so easily cut. “When there are children and grandchildren, there is a desire to honour the family dynamic,” says Sachs “People want to end the relationship in a way that allows them to earn and keep the respect of their children.”

Divorce coach Kaplan says a great deal of her effort is expended preparing clients for the emotional blowback they might get from unexpected sources as a result of their decision to split. “People think it’s easy for the kids when they’re grown up, but in some ways it’s more difficult, because they’ve had so many more years seeing their parents together,” she says. “It becomes a discussion of who gets to see the grandchildren when, and who can be in the same room with whom at which celebration. It can make adult children feel guilty and torn as they try to figure out these issues that are brand new to them.”

Another surprisingly emotional component to grey divorce comes in the form of pensions, says Korn, who explains that some spouses are taken aback to discover that defined-benefit plans, along with RRSPs and other investments, are subject to equalization in the same way as cars, cottages, and other property. “The person who has earned the pension feels that there’s something special in its character because of the way they worked for it,” Korn says. “For some people, it carries as much emotional weight as the family home or cottage.” And for many long-term federal employees, their pension’s financial heft can easily match or surpass that of a couple’s real estate holdings, she adds.

On the upside, Peticca says legislative amendments made at the beginning of the decade have taken the sting out of the previously laborious pension valuation process by reducing the need for actuarial opinions and allowing pensions to be split at the source. “It’s very formulaic and you can easily ascertain what the numbers are,” he says.

Sachs says the new rules allow parties to come to more creative financial solutions during a split. Depending on the individual circumstances of the pension holder, she explains that former spouses may use retirement funds to cover an equalization payment, while others prefer a non-cash transfer of assets between investment vehicles. “Usually there will be some combination of cash payments and transfers of other assets,” she says. “You have to consider the tax consequences of each, what impact a transfer might have on the future income of the original pension owner.”

She adds, “it’s best to do as many calculations as you can, so that people can make the most informed decision possible. You don’t want someone turning around six months later and regretting signing the agreement.”

As well as laying out the immediate options for the division of assets during a divorce, Sachs encourages her clients to look ahead at how they will fund their remaining years. “The way I look at grey divorce is as a big financial change with some legal implications attached,” she says.

In some ways, Sachs says her job is easier with older clients than younger mid-career divorcees still in asset accumulation mode. “If you’re retired or close to it, not a lot is going to change. There are more knowns than unknowns, so financial planning and forecasting is much more realistic,” she says.

But the reality can be hard to face for parties who had already laid their own retirement plans based on the assumption that their marriage would continue, she says. “Some will look at extending their work lives for an extra couple of years, and many will have already thought of downsizing anyway in terms of housing. The change can be huge.”

Online dating has revolutionized another aspect of post-divorce life for older Canadians. “Divorce at 55 or 65 used to mean that you would spend the rest of your life alone, but that’s not so much the case now, because there are so many opportunities to re-partner,” says Sachs.

But family lawyer Mary Jane Binks, a partner with Ottawa firm Augustine Bater Binks LLP, warns that new relationships bring fresh risks, urging grey divorcees to consider drafting marriage or cohabitation contracts before taking any big steps. It’s not usually a hard sell for older clients with previous marital experience, especially when they have grown up children, she adds. “People who re-partner in their 60s and older usually come into the relationship with a different mindset. They want to protect their offspring from having to share certain assets from the new partner, and they’re less superstitious about marriage contracts than younger couples, who seem to think that if they sign one, it will lead to a breakdown.”

 

This article appeared in the winter 2019 issue of our in-house magazine, Sage. Please download the full issue and peruse our back issues!