Babcook v. Babcook, 2017 ONCJ 677

ONTARIO COURT OF JUSTICE CITATION: Babcook v. Babcook , 2017 ONCJ 677 DATE: 2017 09 25 COURT FILE No.: Sarnia 280/05 BETWEEN: Richard Thomas Babcook Applicant — AND — Anne Margaret Babcook Respondent Before Justice Paul J.S. Kowalyshyn Heard on September 19, 21, and December 12, 2016. Written submissions received on January 16, February 3 and February 10, 2017. Reasons for Judgment released on September 25, 2017. James J. Carpeneto...................................................................... counsel for the applicant Rose A.

Faddoul........................................................................ counsel for the respondent Kowalyshyn J.: INTRODUCTION [ 1 ] The applicant seeks the following relief:

a) an order terminating (or in the alternative, reducing) his spousal support obligation as set out in their separation agreement dated June 20, 2003, effective January 1, 2014; and,

b) such further and other order as the court deems just. [ 2 ] The respondent asks that the applicant’s motion to change be dismissed;

b) an order that the applicant continue to pay the sum of $1134 per month in spousal support in accordance with the terms of the aforesaid agreement;

c) in the alternative, that the applicant pay her a lump sum spousal support payment;

d) in the further alternative, an order imputing the applicant’s income at $76,065 for the purpose of determining a proper quantum of spousal support;

e) costs on a full indemnity basis; and,

f) such further and other relief as the court deems just. BACKROUND [ 3 ] The applicant was born on October 25, 1957 and the respondent on July 27, 1958. [ 4 ] The parties were married on May 10, 1980. It was a traditional marriage in which the respondent was initially working but stopped so that she could remain at home to have and raise their two children, Mark and Adam. Both are adults now. [ 5 ] Apparently, the respondent worked the odd maternity leave job during a 4-5 month period in 1988 when the applicant was on

strike and out of work. In addition she had some very limited “out of the home” income. [6] The parties separated on February 7, 2002. At the time of separation the applicant was 44 years of age and the respondent was43. That year the applicant’s income was $72,750 and the respondent’s was $9,655. [7] The parties were divorced on April 8, 2006. [8] The parties executed a separation agreement on June 20, 2003 which dealt with the usual issues of custody, access, child andspousal support and a complete division of their property.

The debts exceeded the assets (applicant assumed responsibility) and the onlyasset to divide was the applicant’s pension with Bell Aliant. [9] The pension was divided according to the Marsham formula in accordance with their separation agreement.

The respondentwas paid her share by way of an RRSP transfer of $18,444.09 on February 29, 2004. [10] The separation agreement was registered for enforcement by the respondent in the Ontario Court of Justice in Sarnia onSeptember 9, 2005. [11] In 2003, the year the separation agreement was signed, the applicant’s income was $66,300 and the respondent’s was $11,548. [12] Pursuant to the terms of their separation agreement the applicant was obliged to pay $1134 per month in spousal support and$891 per month in child support, both commencing July 1, 2003. [13] The applicant stopped making child support payments in June 2005 in relation to Mark and in June 2008 in relation to Adam.No adjustment was made to his spousal support payments. [14] The applicant remarried in February 2009.

This resulted in the respondent losing her entitlement to any death benefits under hiscompany pension plan. The applicant currently resides with his wife in her home in Corunna.

She retired from work in January 2014. [15] In late 2013, the applicant accepted an early retirement package from his employer thereby reducing his pre-retirement incomefrom $75,126.82 per year to $25,133.16 per year (monthly pension of $2094.43). [16] As a result of the retirement, the respondent also lost her entitlement as a beneficiary on the applicant’s company life insurancepolicy. [17] According to the “Limited Retirement Offer…Employee Application Form” (Exhibit 10, Tab 24) signed by the applicant onSeptember 25, 2013, the release date from Bell Aliant could have been as early as December 31, 2013 and as late as March 31, 2015. [18] The document went on to state that the employer had the “sole discretion” to determine the date.

The effective date of theretirement ended up being December 31, 2013. [19] The applicant also received a severance payment of $73,699.50 plus some company stock (estimated to be a total package ofapproximately $83,000). [20] At the present time, the respondent continues to work full time as a medical secretary.

She earns approximately $34,272 peryear. [21] The applicant’s pension income is $25,905 per year. [22] The applicant argues that there have been two material changes in circumstances justifying the elimination or reduction of hisspousal support obligation. [23] The first is his retirement from Bell Aliant and the resulting reduction in his income.

The second is the increase in therespondent’s income following separation. [24] The respondent argues that there should be no termination or reduction in the applicant’s spousal support obligation. [25] The respondent submits that no “triggering events” as set out in the separation agreement have occurred and therefore spousalsupport cannot be terminated. [26] She submits that the applicant should not be allowed to rely on his unilateral decision to take early retirement in order to impacteither the quantum or duration of the spousal support obligation to her detriment.

ANALYSIS [27] Section 35(2) of the Family Law Act provides, inter alia, that a separation agreement filed with the court can be varied under s.37. [28] S. 37(2) (

a) references a “material change in circumstances” test being applied which is consistent with the terms of the parties’separation agreement. [29] The onus is on the party asserting a material change in circumstances. A “material change in circumstances” means that achange if it existed or was known at the time of the agreement, would have resulted in different terms. See Willick v. Willick, (SCC), [1994] 3 S.C.R. 670.

[ 30 ] The relevant provisions of the separation agreement are as follows: 9. Spousal Support

(1) The Husband shall pay spousal support to the Wife in the amount of $1134.00 per month, commencing July 1 st , 2003. It is the intent of the parties that the Husband shall actually pay said monthly support out of his 1 st pay period of each month.

(2) Said spousal support shall terminate if one of the following occurs: (

a) the wife remarries; (

b) the wife has cohabited in a relationship for three years; (

c) the wife dies. 11. Material Change in Circumstances

(1) The Husband and the Wife intend paragraphs 8 and 9 of this Agreement to be final except for variation by reason of a material change in circumstances that affects: …. (

c) financial needs of the Husband and the wife; and (

d) the financial resources of either the Husband or the Wife. [ 31 ] Looking therefore at these paragraphs, there is no basis to terminate spousal support as the parties agree that no triggering event as defined in the separation agreement has occurred. Therefore, prima facie, the only issue is the quantum of support. [ 32 ] I find that the parties by their own agreement contemplated that a retirement might result in a reduction in the quantum of spousal support paid. The retirement of the applicant effectively resulted in a change to his “financial resources” and hence, the condition precedent set out in paragraph 11(

d) has been met. [ 33 ] At the crux of the matter however, is whether or not the applicant’s voluntary decision to take an early retirement should allow him to reduce his support obligation retroactive to January 1, 2014. For the reasons which follow, I do not find that it should, not at least to the extent requested by the applicant. [ 34 ] The applicant set out his reasons for taking an early retirement from his employment in his affidavits sworn March 20, 2014 (para’s 7-9), and January 6, 2016 (par. 12).

This evidence was confirmed (in part) during the course of his viva voce evidence. [ 35 ] Essentially the reasons were: • His employer was aggressively downsizing and was offering an early retirement to those with seniority that would include post- retirement benefits that would be lost if the offer wasn’t accepted • After 36 years of working he was in need of medical coverage “for a long term” due to injuries to his back, arthritis, sleep disorders and internal ongoing medical concerns • the downsizing of the local work force was an ongoing concern he was unable to deal with • he wasn’t planning on going back to work as he was “burnt out” • his job lacked interaction with others and was affecting him personally as he felt he was only working to financially assist the respondent • he wasn’t enjoying his life and as he was getting older his options to enjoy his life were limited • he believed at the time of separation that the respondent was working and earning $27,000 per year and he believed their respective annual incomes would be approximately the same • that although he was advised by his lawyer to continue working until he could no longer work, he felt that he was near retirement in any event and that the offer wouldn’t be repeated • that he believed a lot of jobs with his employer were going to be made redundant and this was his “best option for securing any income” [ 36 ] During the trial the applicant stated that he was also offered a “$75,000 retirement incentive…and another incentive was change in management and situations at work…” [ 37 ] The law on voluntary retirement is succinctly summarized in the case of Hesketh v.

Brooker, 2013 ONSC 1122 at paragraphs

22-28. I accept and adopt the sum​marization outlined therein. [38] In that case Justice Turnbull emphasized the importance of having an evidentiary basis upon which to corroborate the retiredspouse’s reasons for early retirement. He said this at paragraphs 30-34: 30 The onus of proof lies on the applicant Mr. Hesketh and the standard of proof is on the balance of probabilities, see: Willick, supra. 31 I have no doubt that Mr. Hesketh has experienced significant health problems in the past five years.

However, I am not satisfied onthe balance of probabilities that he has satisfied the court that there has been a material change of circumstances such as to warrant avariation of the order of Heeney J. There is no doubt that there has been a change in his circumstances. The issue is whether it is amaterial change as recognized in law. 32 The change in circumstances he relies on is his voluntary retirement from his job at the first possible date he could do so without anyreduction in his pension benefits.

In circumstances such as these, the applicant has a positive duty to provide evidence that his decisionwas made in good faith and on appropriate grounds. The voluntary, unilateral retirement from his job was his decision which he madeknowing very well that his decision would significantly impact Ms. Brooker. Mr.

Hesketh clearly knew that the spousal support ordermade by Heeney J. was an indeterminate one based on him working full time and at least to age 60.2. 33 He cannot sidestep the obligations imposed by the court at that time by a retirement which is not corroborated by medical orvocational experts and/or representatives from his employer who could independently corroborate his claim that he was medicallyunable to continue his work or that he could not be accommodated in less stressful work by his employer. 34 Absent that evidence, I am not satisfied on a balance of probabilities that the decision to retire was not just a voluntary decision asopposed to one that was medically necessary and medically recommended.

The test for establishing that a material change ofcircumstances has occurred has not been established by the applicant. [39] In this case the applicant has not offered any corroborating evidence with respect to his medical issues, psychological concerns(i.e., burnt out, feeling of isolation), or “aggressive downsizing” by his employer necessitating an early retirement. [40] This is not the same situation as set out in a case filed by the applicant of Parker v. Parker, 2014 ONSC 4211 .

InParker, the husband’s position with his employer (Department of Fisheries and Oceans) was considered “surplus” and he was given twooptions. He could leave and take pay in lieu of notice or he could stay on and try and find another job at the same level in the federalgovernment. [41] In the case at bar the applicant was not faced with any similar ultimatum by Bell Aliant.

In fact, it was the applicant who soughtout more information from his employer with respect to a possible offer of early retirement. [42] With respect to what I suspect was an explanation of the “burnout”, the applicant testified that he had moved from being a class3 technician to becoming a class 1 technician and becoming responsible for 10 different offices (Corunna, Courtright, Sombra, PortLambton, Brigden and 5 remote offices in between). He said he was responsible for “putting out fires” in these offices and would visiteach of them on a daily basis. [43] Also, once during an 8 week

schedule he was responsible for all of Lambton County (Saturday) and once during an 8 weekschedule he was responsible for Kent County (Sunday). [44] I understand why the applicant may be “burnt out” however, the applicant offered no evidence as to how long this had beengoing on or any medical evidence in support.

I am therefore unable to find on the balance of probabilities that that this was somethingthat had worsened to the point that he had to retire early. [45] I therefore reject these explanations as being valid grounds to terminate his employment early as the applicant has not met hisonus. [46] Similarly, I do not accept the applicant’s evidence of feeling that he was “only working [for] the respondent”, or that theirincomes were similar, as being valid grounds to take early retirement. These are not valid reasons.

The applicant himself testified that hereally did not know what the respondent’s income was when he chose to take early retirement. [47] No substantive evidence was offered in relation to his employer downsizing and his employment falling into jeopardy, therebynecessitating him having to consider this as a factor in opting for early retirement. [48] Where I do, however, accept the applicant’s evidence in support of his decision to retire early, is in relation to the loss of futureextended health (medical, dental, vision) and life insurance benefits. [49] The contents of the document found at Tab 1 of the Applicant’s Supplemental Documents Brief (Exhibit 5), entitled “GradualPhasing in of changes to Benefits at Retirement over a 10 year period & DC Pension Window Reopening”, buttress the applicant’saffidavit and oral evidence. [50] The document specifically sets out the particulars of what is to be gained or lost by a person of the applicant’s seniority if hechose to retire on a date after December 31, 2016. [51] The relevant considerations set out in the documentation are set out as follows:

• For the following five years, i.e. for employees retiring between January 1, 2012 and December 31, 2016, company paid medicalcoverage, excluding vision, dental and life insurance, will be offered until they reach age 65, at which time they will be covered undergovernment programs. • Employees retiring on or after January 1, 2017 will not be eligible for company -paid benefits. • Medical benefits include-prescription drugs, semi-private hospital room and some professional services such as physiotherapist,psychologist, etc.; 80% refund to retirees [52] The potential loss of these benefits to the applicant was not something that would have been known to the applicant orreasonably foreseen at the time the separation agreement was signed.

In fact, the notice from Bell Aliant setting out this information andchange in benefits was issued/dated in March of 2007 and presented to Bell’s employees that same year. [53] Extended health care benefits, especially when they are employer-paid, are a valuable commodity to any employee especially inthis day of rising health care costs. [54] I therefore find this potential loss of benefits to constitute a material change of circumstances [55] I find the applicant’s decision to take advantage of these continuing benefits (and therefore not lose them by retiring afterDecember 31, 2016) to be reasonable under all of the circumstances.

In relation to this reason for taking early retirement, I find it to havebeen made in good faith. [56] Given that the applicant has demonstrated a material change in circumstances, it is now necessary to determine what variation tothe agreement needs to be made in light of the change in circumstances. See Dean v. Dean, [2016] O.J. No. 3521 (SCJ) at para 108,referencing the decisions of Willick. v. Willick, supra, and L.M.P. v.

L.S., 2011 SCC 64 , [2011] 3 S.C.R. 775. [57] The applicant was 56 years of age at retirement and he had already worked 36 years for Bell Aliant (or its predecessor). [58] As I have already indicated, continuing extended health care benefits are a valuable benefit to any retiring employee in anyindustry regardless of medical condition.

I therefore do not accept the respondent’s contention that “medical evidence” is required inorder to support the applicant’s decision to keep, rather than lose these benefits, by opting for early retirement. [59] However, as there would be no loss to the applicant of these benefits so long as he retired before January 1, 2017 I am notpersuaded that there was any immediate need for him to retire when he did.

He could have waited until the end of 2016 without any lossof benefits or coverage whatsoever but he chose not to do so. [60] Additionally, the applicant testified that he was entitled to continue to receive these benefits if he remained employed. In thatcase he would have lost nothing had he continued on with his employment. [61] I find that the applicant clearly knew that his voluntary early retirement was going to directly impact the respondent.

He retiredeffective December 31, 2013 and commenced this Motion to Change on March 25, 2014. [62] Accordingly, I find that the applicant’s obligation to pay spousal support payments to the respondent is to continue at the rate of$1134 per month at least up to and including December 2016. [63] Before dealing with the issue of ongoing spousal support beyond that date, I will address another argument submitted by theapplicant in support of his request that the court find another ground upon which to find a material change in circumstances. [64] The applicant has argued that the respondent’s financial circumstances have improved considerably since the time of separationand that this constitutes a material change in her circumstances. [65] I take his argument to mean that there has been a change in the respondent’s “financial needs” as contemplated in paragraph 11(1) (

d) of the separation agreement, although it was not specifically articulated as such. [66] I do not accept this argument. I disagree that she has become “self-sufficient” for the reasons which follow. [67] This was a long term traditional marriage. In consultation with the applicant, the respondent stopped working and remained athome to give birth to and raise their two children (except for brief periods of modest employment).

The respondent was therefore a stayat home mother and wife. [68] At the time of separation, the respondent had not engaged in full time paid employment for approximately 19 years. [69] At the date of separation the respondent was 44 years of age.

Their sons were 18 and 16 and remained in her care. [70] There is no doubt in my mind that in this case, spousal support was and is warranted on both a compensatory and needs basis.Even the SSAG calculations submitted by both counsel note that spousal support is “indefinite”. [71] The terms of the separation agreement provided that spousal support would only be terminated in limited specificcircumstances. The parties agree that none of those have occurred. [72] Self-sufficiency is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particularamount of income.

It must be considered in the context of the prior standard of living and the standard of living the parties should be ableto enjoy after separation. See Fisher v. Fisher, 2008 ONCA 11 , [2008] O.J. No. 38 (C.A.). [73] The respondent is now 59 years of age. She works as a medical secretary. She has no special skills. She does not have the

ability to re-train to earn a higher income. Her 2016 employment income was estimated to be $38,556 (as per her financial statementsworn August 25, 2016), the same as her 2015 employment income. [74] The respondent testified that with respect to the income she is earning now, that she has “pretty much capped out.” She alsostated that she does not have the ability to earn any additional income from any other source. [75] The applicant’s pension was valued using an age 65 retirement date notwithstanding that he retired at age 56.

The respondenthas therefore not received the full share in his pension which is therefore to the husband’s benefit. [76] The respondent has a secured line of credit on her home. Evidence received during the trial discloses that at the time of herinitial credit application (account opened in May, 2011), her income “including her support payments” was used for approval. Sherefinanced in 2016 and the next renewal is in 2021.

The respondent testified that her understanding from discussions with her bank is thather ability to refinance may be impacted by a loss of spousal support. [77] In 2015 the respondent withdrew $2133 from her RRSP in order to be able to pay some bills. [78] She has no benefits available to her through her employment, no company pension, and no life insurance policy. [79] She expects to work until age 65 and has a very limited retirement fund upon which to meet her expenses. [80] She has not remarried and therefore has no one with whom to share her day to day expenses. [81] The respondent lives modestly and has significant debt in the way of a mortgage, line of credit and a car loan.

Her investmentsare also modest, largely consisting of the RRSP transfer ($18,444.09) she received following separation, which represented her share inthe applicant’s pension. [82] The evidence discloses that the respondent does not enjoy a standard of living which is comparable to the standard of livingenjoyed by the parties at the time of separation. [83] There is no evidence before me suggesting that the respondent will be able to replicate the standard of living enjoyed during themarriage in the future.

Accordingly, she will not be able to achieve self-sufficiency. [84] I am mindful that the respondent’s income has gone up over the years following separation. This alone does not constitute amaterial change in circumstances for the reasons stated herein. [85] The cases submitted by the applicant in this regard are of no assistance. [86] In Lawder v. Windsor, [2013] O.J.

No. 4334 (SCJ), this was a “review” case in which it was not necessary for the husband todemonstrate a material change in circumstances (unlike this case). [87] Additionally, in that case Justice Broad found that the wife had achieved self-sufficiency which is not my finding here. [88] With respect to Sullivan v. Sullivan, 2015 ONSC 3966 , this case dealt with a much shorter period of marriage (13years). Also, in that case the only material filed by the wife was a “draft” financial statement.

Hence, Justice Platana decided that case onthe basis of the only evidence that was before the court, that being the husband’s. [89] This therefore brings me to determining the quantum of ongoing support. Any order made must reflect the realities of thefinancial circumstances of the parties. The respondent continues to demonstrate a need of ongoing support. The applicant has less incomefrom which to make those support payments. [90] If the spousal support payments are lowered or eliminated the respondent will have to change her lifestyle considerably. I findthat to be a fact based on the evidence before me.

I do not find this to be the case for the respondent. I have no evidence of there beingany significant lifestyle change from the one he had when married to the respondent, to the one he now enjoys now. [91] The applicant’s obligation to pay child support was eliminated in 2008 with no resulting increase in spousal support. Courtshave held that termination of child support can create a material change in circumstances supporting an increase in spousal support. SeeFerguson v. Ferguson, (ON SC), [2008] O.J. No. 1140 (SCJ). [92] The applicant lives with his wife in a home which she owns.

The home is mortgage free. [93] The applicant and his wife appear to travel on vacations regularly. He vacations with her in Florida 1-2 times every other year,in a timeshare which she owns. [94] The applicant confirmed that in 2014 he transferred a “significant” amount of money into and out of a US bank account (Exhibit13) in order to take advantage of fluctuating exchange rates “on occasions” yet offered no explanation as to where those monies camefrom.

The fact that he was able to do so is not insignificant. [95] The applicant income shares with his wife, which he agrees offers him (I presume “them”) a taxable benefit. [96] The applicant testified that he and his wife do not share the household expenses equally but offered no clarification as to whatthat meant. [97] The applicant acknowledged that following his retirement he withdrew $17,000 from his RRSP to pay for renovations to hiswife’s home (their matrimonial home). He also acknowledged that he “possibly” withdrew $17,944 from his RRSP to pay on his CapitalOne MasterCard.

[ 98 ] The applicant has no significant debts although he claims in his financial statement sworn August 17, 2016 to have yearly expenses of $54,045.84 against an annual income of only $25,905.12. [ 99 ] No real explanation was given for the large discrepancy. The applicant’s numbers don’t add up. [ 100 ] Counsel for the respondent went to great lengths to demonstrate that the applicant has provided inconsistent and inaccurate financial information in the financial statements he has filed throughout these proceedings (see paragraphs 22-27 of her closing submissions).

There is merit to her submissions as it calls the applicant’s credibility into question. [ 101 ] The applicant has neither demonstrated nor submitted that there has been a material change in his financial circumstances affecting his “financial needs” as set out in paragraph 11 (1) (

c) of the separation agreement. [ 102 ] Similarly, there is no evidence or suggestion that his current standard of living as compared to his former one with the respondent, has changed for the negative, in any material way. He appears to be able to live quite comfortably with his wife. He is clearly able to meet his ongoing daily living expenses. [ 103 ] The applicant testified that he was not under any immediate pressure to retire when he did. He was not forced to retire.

He chose to retire. [ 104 ] The applicant also testified that there was no urgency for him to accept the early retirement package/offer which incidentally, he asked to get more information about. He testified that the early retirement package had been offered in the past and might also be offered in the future, but that there was no guarantee. [ 105 ] The applicant’s extended health benefits would have continued to be available to him in the event he continued to work until 65.

He would have lost nothing. [ 106 ] In fact, the applicant stated that his ongoing extended health benefits were going to be better or more advantageous to him if he kept working as compared to what he would receive in retirement. [ 107 ] I find that what the respondent did was safeguard or protect his extended benefits in the event of a retirement before age 65 and after December 31, 2016. [ 108 ] I can understand that. I appreciate why he did that. [ 109 ] But this decision on his

part comes with consequences.

He knew when he made that decision that he was subject to what was effectively a spousal support obligation of indefinite duration. [ 110 ] The respondent should not be required to bear the brunt of the applicant’s decision to leave his employment early in order to protect his extended health benefits. [ 111 ] As far as the respondent knew, she was going to receive spousal support indefinitely, or at least until the applicant’s normal date of retirement (barring a material change in their financial needs or resources or the 3 triggering events). [ 112 ] She expected to be receiving support into her retirement based on the agreement which the two of them had reached several years earlier.

Her belief was therefore not unreasonable. [ 113 ] The applicant testified that at the time the separation agreement was signed that he had no intention to retire early.

He said that he has not even thought about it. [ 114 ] The applicant testified that Bell Aliant employees were “federally mandated so they have to retire by 65”. [ 115 ] The applicant himself, through his employer’s pension administrator calculated and divided his company pension on the basis that he would retire at age 65 (Exhibit 10, Tab 14) [ 116 ] The applicant’s evidence that the age 65 retirement age was done after the fact or without his knowledge or wasn’t reviewed prior to the pension division is simply not credible.

At the time the separation agreement was signed the applicant was represented by counsel. [ 117 ] He did not strike me at trial as being an individual who might simply be a “lamb” being led astray or otherwise kept in the dark. In fact, I found the applicant to be quite the opposite. He knew that his pension was calculated on the basis of an age 65 retirement.

Period. [ 118 ] Accordingly, all of the evidence tendered leads to no other reasonable conclusion than the parties believed that the applicant would continue to work and earn an income at least until age 65. [ 119 ] I find that the applicant knowingly created the situation which he now finds himself in. Interestingly, it was apparently against legal advice (see paragraph 9 of his affidavit sworn March 20, 2014). He therefore has done so at his own financial peril. [ 120 ] Having said that, I have already found that the applicant did have some reasonable rationale for taking the early retirement package.

I therefore do not find that he “manufacture[d]” a material change in circumstances as the court found in Crichton v. Chrichton 2012, ONSC 5449 (SCJ), a case proffered by the respondent’s counsel. [ 121 ] I similarly do not find that the applicant intentionally accepted the early retirement package solely because he wanted to reduce his income and put himself in a position where his spousal support payments would be lowered.

[122] This is not a situation, for the reasons aforesaid, to terminate spousal support. However, an adjustment needs to be made toreflect the financial resources and needs of the parties. [123] The respondent will need time to adjust her lifestyle, possibly re-arrange financing, etc., to reflect a reduced amount of spousalsupport being received.

Conclusion [124] Spousal support shall continue to be paid at the rate of $1134 per month as set out in the June 20, 2003 separation agreement,payable on the first day of each month, through to and including August 1, 2018. [125] Commencing September 1, 2018 and on the 1st day of each month thereafter, the June 20, 2003 separation agreement shall bevaried to provide that the applicant shall pay spousal support to the respondent in the amount of $788 per month. [126] Commencing September 1, 2019 spousal support shall be paid at a rate of $445 per month. [127] I have not included a termination date. [128] The reduced amounts stated herein essentially reflect a percentage reduction of the respondent’s income from the date of theseparation agreement to what he now earns in retirement, on a staged in basis. [129] Although the applicant did not ask the court to address the issue of “double-dipping” in his submissions, I have considered theSupreme Court of Canada decision in Boston v.

Boston, 2001 SCC 43. [130] The Boston decision was referenced in the case of Meiklejohn v. Meiklejohn, (ON CA), [2001] O.J. No.3911 (C.A.), a case submitted by the respondent. [131] I find in this case, as in that one, this general rule against double dipping does not apply. [132] A significant portion of the applicant’s pension was not equalized because it was probably undervalued having regard to the“age 65” retirement date rather than the applicant’s actual retirement age of 56. [133] Spousal support in this case is based not only on compensation but also on need.

The respondent has no ability to earn anygreater income than she has at present. She received very little in the way of any equalization of net family property (kept her car). Sheneeds to retain her RRSP’s for retirement purposes.

She has no pension. [134] To quote Justice Major in Boston at paragraph 65, “An economic hardship from the marriage or its breakdown persists”. [135] Just as the Court of Appeal said in Meiklejohn at para. 15, “This means that some spousal support must continue even if aportion of it will have to come from the equalized part of the husband’s pension.” [136] All other claims are dismissed. [137] With respect to the issue of costs, the parties should reflect upon this judgment and appreciate and realize that neither one ofthem was entirely successful.

I expect that both may be equally dissatisfied. [138] I am not forestalling any party from forwarding submissions on costs. I am simply suggesting that each may wish to considerthat the final outcome was not what either was arguing for. [139] In the event the parties cannot agree on costs (the amount or “no costs”) then each shall submit their position, not to exceed threepages, with copies of any offers attached to the attention of the Trial Coordinator.

The submissions shall be served and submitted within21 days of the date of release of this judgment. [140] The final order shall include paragraphs 124, 125, 126, 136 and 139. Signed: Justice Paul J.S. Kowalyshyn September 25, 2017