November 22, 2010 By: Marta Siemiarczuk
Print

In a recent Superior Court decision, Justice Mary Nolan reminds us of the various exceptions to the rule against double-dipping in spousal support cases.

In her judgment in Dishman v. Dishman on Sept. 30, the parties had been separated for nearly 10 years. They resolved certain issues on consent, such as equalization, custody, access, and benefits. Based on an actuarial pension valuation, the parties agreed it was reasonable to expect that Robert Dishman would retire at 59 1/2 years of age. The equalization payment to Mary Dishman stemmed in part from that pension analysis and was a relevant fact in the latest decision.

Another judge determined the issue of spousal support at the trial of the main application. As a result, Mary was to receive spousal support of $750 per month for an unspecified duration with the possibility of a review by either party in three years' time.

But what the parties didn't anticipate was an announcement made by Robert's employer in the summer of 2009 that it would be shutting down the automotive plant where he worked within a year. In response, the employer offered its senior employees such as Robert an early retirement buyout package. The offer was fairly lucrative, consisting of a $125,000 lump sum, plus the ability to receive a full pension despite not having had 30 years of service. Robert accepted, thereby retiring at the age of 52 1/2.

Now being a retiree, he not surprisingly sought to vary, among other payments, the spousal support payable to his former wife by claiming his retirement was a material change in circumstances and that his income had now decreased substantially. He further argued that much of his pension had already been equalized and that the income derived from the unequalized portion was essentially equivalent to Mary's part-time employment income. Therefore, he earned insufficient income upon which to find an amount owing for support.

Robert conceded that when the employer announced it would close its plant within a year, he could have kept his employment until the shutdown date and then taken the buyout package. He argued, however, that this decision carried the risk of the employer going bankrupt before the anticipated shutdown date, which could have resulted in financial disaster.

Robert also argued that having been separated for 10 years while faithfully paying support without having tried to review it previously, he had acted responsibly towards his former wife, whom he said was now self-supporting.

She disagreed, however, and opposed the motion to change.

Referring to a key case on pensions and double-dipping, Boston v. Boston, Nolan reviewed certain exceptions to the rule against double-dipping: the fact that a party earned a sufficient portion of the pension after separation; the justification for support was based on a needs as opposed to a compensatory model; and the payor has the ability to pay.

Nolan didn't find the argument about prior ability to review support to be persuasive, noting instead that the original trial award amount was based on Robert having an estimated income of $60,000 per year. By the time he began this motion, his income had increased to $85,000 and had been in that range for some time. In fact, according to Nolan, Mary could have reasonably applied to increase her support payments based on her former husband's higher income.

Given that from the outset, the expectation was that Robert would work until he was almost 60 years old and in light of Mary's continued need for spousal support, Nolan was quick to determine that the payments should keep going.

In coming to this conclusion, she relied on the fact that at the age of just 52, Robert didn't seek new employment even though he was medically able to do so while at the same time arguing the court should deem his former wife to be self-supporting. Nolan further relied on the fact that unlike his former wife, Robert had a new partner with financial resources assisting with the cost of running a household.

The reasons then focused on the question of whether the support should involve a lump sum or continue as periodic payments. Nolan concluded it would be easier to generate a predictable income stream with monthly payments rather than a lump sum and that such payments would better meet Mary's financial needs arising out of the marital breakdown.

While there seems to be little expectation of a support payor having to seek a new job when historical long-term employment ends just a few years away from retirement, Dishman looks at the issue in a more challenging circumstance. It's the retirement-age nexus, whereby it's not entirely unreasonable to concede that the retirement was warranted yet at the same time entirely reasonable to expect some other form of employment to continue, that creates difficulties.

It's with those types of facts that the spectrum of analysis becomes less predictable. As a result, Dishman illustrates the courts' continued sensitivities to long-term traditional marriages

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca

[This article is reprinted with permission and first appeared in the November 2010 issue of The Law Times.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law