June 23, 2008 By: Marta Siemiarczuk
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So, you drew up a great separation agreement for your client four years ago, his or her pension was equalized, everything was going smoothly, and then one day your client calls to say, "I've retired, can I stop paying spousal support now?"

Your best answer is "maybe."

Double-dipping one's pension is a sensitive topic. Your client has an income, may even be working post-retirement, and your client's spouse may also be retired now and earning less.

In Winseck v. Winseck, a well-reasoned decision of the Divisional Court, Justice David Aston gave us a useful refresher on the law as it relates to double-dipping an already equalized pension.

In Winseck, the husband and wife cohabited for 34 years. Minutes of settlement were signed in 2000. The husband's pension was equalized based on a 2002 date of retirement. The husband, however, continued to work post-retirement and his total income increased by approximately $5,000 annually.

The wife's pension income was approximately $10,000 annually. At the time the settlement was reached, she was caring for two foster children, and at the time of the variation motion, she was caring for four. She received funding for the children, which at the time of the motion amounted to about $4,000 per month.

The husband sought to reduce his spousal support payments based on a material change, that being his retirement and based on the double-dipping principle. The wife sought to increase support based on the husband's increase in total income.

The motions judge determined the equalized portion of his pension income ought to be excluded from the husband's total income in determining the quantum of support, and held the wife would be entitled to approximately $500 per month in ongoing support. However, given that at the time of the settlement she was receiving a parents' allowance for two foster children and now she was receiving the allowance for four, the increased benefits ought to be considered due to certain economies of scale. The motion judge held those added benefits amounted to approximately $500 per month, and as a result, terminated spousal support.

Aston, speaking for a unanimous court, upheld the decision. Most importantly, he noted that retirement is not the "material change" warranting a variation, which many payors believe ought to be the case. Rather, it is the resulting decrease in income that is the material change. Aston noted while it's correct that, subject to exceptional cases warranting double-dipping, the equalized portion of pension income ought to be excluded, regard must be had to the total income being earned by the payor.

So, in cases such as Mr. Winseck's, who actually increased his total income, support would continue to be paid, at the appropriate amount. However, because Mrs. Winseck's financial means also increased, support was appropriately terminated in this case.

Contrast this decision with that of Justice Steven Rogin, in Perry v. Perry. In that case, the parties were married for 25 years and the decision arose out of an application for equalization and final relief.

The husband was paying interim spousal support of $1,200 per month. The wife's only other source of income was a $64-per-month disability pension. As part of the equalization process, the husband's pension would be equalized, leaving him with only his pension income, which, by the time the application was decided, was already in pay. His pre-retirement income was in the $75,000 range, and $42,000 post-retirement. He was paying spousal support of $1,200 prior to retirement and sought a termination of spousal support obligations.

This case illustrates precisely those exceptional circumstances where double-dipping is permissible. The factors Rogin found persuasive were, approximately ten years' worth of Perry's pension accumulated post-separation, although no analysis was conducted of the income generated from the non-equalized portion of the pension; the wife's income was at the poverty level and she had a limited ability to earn; the equalization payment would only generate a modest amount of income to her; and the breakdown of the marriage disadvantaged her economically.

No doubt much to Perry's surprise, the $1,200-per-month support payments were ordered to continue. This just goes to show that financial need is a driving factor in the quantum and duration of support that will be ordered by a court even after a payor retires.

These two decisions remind us of the need for caution in how we structure separation agreements and how we approach termination or reduction of spousal support post-retirement. Although our clients may believe that once they retire, especially when a pension has been divided, support obligations will end, it's not always the case.

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

[This article is reprinted with permission and first appeared in the June 2008 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