CITATION: Dillman v. Dillman, 2021 ONSC 326

DIVISIONAL COURT FILE NO.: DC-19-113

DATE: 20210115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, PATTILLO, and BLOOM JJ.

B E T W E E N:

Grant Edwin Dillman

Philip J. Smith, for the Appellant

Applicant (Appellant)

• and -

Elizabeth Lila Dillman

Elli M. Cohen, for the Respondent

Respondent (Respondent on Appeal)

HEARD at Toronto (by videoconference): October 28, 2020

REASONS FOR JUDGMENT

Bloom, J.

I. OVERVIEW

1This is an appeal from the order of the Honourable D.E. Harris (the Motion Judge) dated October 29, 2019 and November 27, 2019 (the Order) which provides that the Appellant, Grant Edward Dillman, pay to the Respondent, Elizabeth Lila Dillman, commencing August 1, 2018 and on the first of each month thereafter, $1,200.00 in spousal support; that any payments made since August 1, 2018 by the Appellant in spousal support are to be deducted from the obligation; that the Appellant maintain life insurance in favour of the Respondent; and that the obligations are to remain in place until the death of either party.

II. FACTS AND PROCEDURAL BACKGROUND

2The parties were married in September 1977 and have two children who are adults and independent. During the marriage, the parties were each employed (apart from the Respondent’s two maternity leaves) and jointly contributed to the marriage. They used paid assistance to allow them to work outside the home.

3In 1991, the family moved to Bruce County to enable the Appellant to take a job with Bruce Power. The Respondent subsequently obtained employment with Bruce Telecom where she rose to a senior management position.

4In December 2010, after thirty-three years of marriage, the parties separated. At the time, the Appellant was 55 and the Respondent 52. The Appellant’s income was $190,393 at Bruce Power and the Respondent’s income was $87,304 at Bruce Telecom.

5In 2011 the Respondent was terminated from her employment with Bruce Telecom. She received a year’s severance and is entitled to a pension which the Motion Judge noted will pay her in excess of $20,000 a year when she decides to start drawing on it. She was offered part-time work, but refused the offer.

6The parties entered into a separation agreement dated January 18, 2013. When the separation agreement was entered, the Appellant was employed at a salary of approximately $190,000 annually. The Appellant was 58 years old and the Respondent 55.

7Under the agreement the Appellant paid the Respondent $6,000 per month in spousal support based on imputation to her of $30,000 per year in income and his actual 2011 income of $187,507. The agreement provided for indefinite support and was silent on the question of the Appellant’s retirement.

8The agreement also provided that the support obligation was reviewable on a material change of circumstances. Further, under the agreement the Appellant made an equalization payment to the Respondent. The Appellant’s Bruce Power pension was taken into account in the equalization calculation based on an early retirement date at age 61. The separation agreement was never made the subject of a court order.

9At the age of 63 the Appellant retired from Bruce Power in July of 2018. The Appellant unilaterally ceased to pay the $6,000 per month in support, subsequently agreeing to pay instead $450 per month. Further, he declined the offer of contract positions subsequent to his retirement.

10The Appellant at 64 years old brought an Application pursuant to the Divorce Act to terminate support; the Respondent, who was 61 years old, sought to continue it. The issues were decided on a Summary Judgment Motion.

11On the motion the parties agreed that $30,000 to $32,000 ought to be imputed as employment income to the Respondent.

12The Respondent had almost $500,000 worth of investments, and as a result of the matrimonial settlement with her husband had ownership of the former matrimonial home mortgage free.

13In his reasons for decision dated October 29, 2019, the Motions Judge found that the Respondent was entitled to spousal support, finding that there were compensatory and needs based justifications for support. He held that the voluntary retirement of the Appellant was not a material change of circumstances which would substantially reduce the impact of the separation agreement on the issue of spousal support.

14He further held that, in view of that finding, the principle against double dipping did not apply. “Double dipping” occurs when a former spouse receives both the benefit of equalization of a pension and spousal support payments from the payor spouse’s retirement income. The principle against double dipping precludes taking into account for spousal support purposes the equalized portion of a payor spouse’s pension.

15The Motion Judge also found that the means of the Appellant including his ability to earn income, the needs of the Respondent, and the continuing hardship from the marriage for the Respondent, justified an exception to the principle against double dipping.

16Based on the Appellant’s annual pension income of $95,000 and the Respondent’s annual income of $65,000 from employment and investments, which was exceeded by her living expenses, the Motion Judge awarded the Respondent spousal support of $1,200 per month retroactive to August 1, 2018. Any payments made by the Appellant since August 1, 2018 were to be deducted from this obligation. He also made an order that the Appellant maintain life insurance for the benefit of the Respondent. Finally, he granted an uncontested divorce, noting the parties had not lived together for almost nine years.

17On November 25, 2019, counsel for both parties sent a joint letter to the Motion Judge seeking clarification as to duration of the support payment ordered and noting that at the hearing, the Appellant formerly withdrew his claim for divorce in order to allow the Respondent to remain on his extended benefits plans.

18On November 27, 2019 the Motion Judge issued a brief endorsement providing that the support was to continue until the death of the Appellant assuming the life insurance remained in place or until the death of the Respondent and rescinding the order for divorce. No reasons were given for the duration of the support order.

19On this appeal, the Appellant has sought to terminate the support order; alternatively, to vary it; and in the further alternative to have the matter referred back for a new hearing.

III. STANDARD OF REVIEW

20In matters of spousal support appellate courts are deferential to the order on appeal. Justice Cronk spoke for the Court of Appeal in Berta v. Berta, 2015 ONCA 918, [2015] O.J. No. 6844 at para. 22 (CA) :

22 A trial judge's award of spousal support will not be interfered with lightly by a reviewing court. Deference to such awards promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. However, appellate intervention is appropriate where there is an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong: Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at para. 11.

IV. ANALYSIS

21In oral submissions the Appellant raised five arguments: (1) the Motion Judge provided insufficient reasons for his decision; (2) the Motion Judge erred in determining the Appellant’s income for support by finding that he had taken early retirement; (3) the Motion Judge erred in determining the income of the Respondent; (4) the Motion Judge erred in his application of the law by allowing “double dipping” with respect to a previously equalized pension; and (5) the Motion Judge erred in ordering support to continue until the death of one of the parties.

22I intend to address first the sufficiency of reasons argument. I will then address the Motion Judge’s consideration of “double dipping” in respect of his support order. The resolution of those issues provides a basis for addressing the remaining issues.

A. SUFFICIENCY OF REASONS

23In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55 and in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 32 the Supreme Court of Canada made clear that in determining whether reasons are sufficient the test is whether they alone, or taken with the record, explain why the decision was taken in order that meaningful appellate review may take place.

24The Appellant argues that the reasons are inadequate, as they do not disclose the basis for the calculation of the quantum of spousal support nor deal with future issues such as the Respondent’s access to a pension. However, the reasons of the Motion Judge taken together with the record disclose the considerations which he took into account in reaching his decision on support. As well, one can determine how he reached his decision about the parties’ incomes, using the Appellant’s then current retirement income and the income figures from the Respondent’s Financial Statement.

25In Fettes v. Clark, 2020 ONCA 705 the Court of Appeal addressed an appeal from a spousal support order. In upholding the decision of the trial judge, the Court at para. 14 affirmed an approach by the trial court which focussed on applicable considerations:

14With respect to the issue of spousal support, the trial judge did not misapprehend the evidence of the respondent’s income earning capacity or her need for an indefinite period of spousal support. She considered and applied all relevant factors [emphasis added]. While her reference to “transitional support” is not entirely clear, the trial judge clearly determined that indefinite spousal support was appropriate in the circumstances of this case given the respondent’s age, income potential and the duration of the relationship: see Djekic, at para. 9. Her decision was reasonable.

26At paragraphs 44 to 51 of his reasons the Motion Judge sets out a summary of the considerations on which he based his decision, namely the separation agreement, the 33 year length of the marriage, the compensatory and needs bases for spousal support, and the current incomes of the parties. He explained why he ordered support despite the concern about double dipping. His award was within the range for the parties’ incomes set out in the Spousal Support Advisory Guidelines (“SSAGs”).

27His reasons are clearly capable of meaningful appellate review as contended by the Respondent.

B. THE ISSUE OF “DOUBLE DIPPING” IN RESPECT OF A PREVIOUSLY EQUALIZED PENSION

28As earlier noted, the Appellant made an equalization payment to the Respondent under the terms of the separation agreement. The equalization calculation took into account the value of the Appellant’s Bruce Power pension, calculated on the basis of a retirement age of 61 years.

29The Appellant argues that the Motion Judge erred in ordering ongoing support, given the principle against double dipping.

30In Boston v. Boston, 2001 SCC 43 at paras. 63 to 65 the Supreme Court discussed the concern about double dipping. Justice Major for the majority expressed the principle that generally, in determining the quantum of spousal support, a court should focus on the portion of a payor’s assets that have not been equalized. He did, however, sanction exceptions where the payor has the means to pay and the payee continues to suffer economic hardship from the marriage, or where the payee has a need for support. In concluding that double dipping was not a factor in continuing support payments, the Motion Judge found that the Respondent had ongoing need for support and the Appellant had the means to pay. His findings of fact support the application of the two exceptions articulated in Boston.

C. THE INCOME OF THE APPELLANT

31The Appellant argued that the Motion Judge erred in calculating his income based on the erroneous application of double dipping. In view of my earlier analysis of that matter, I find that the Motion Judge correctly calculated the income of the Appellant. He reasonably looked to the Appellant’s income at the time of the motion, $95,851 annually from his pension.

D. THE INCOME OF THE RESPONDENT

32The Appellant argued that the Motion Judge erred in calculating the income of the Respondent. The Financial Statement in the record fully supports the finding that at the time of the motion the Respondent’s income was $65,000 annually. The Motion Judge correctly used that figure in his calculation of spousal support. He chose an amount for spousal support within the high end of the range in the SSAGs. There is no reason for appellate intervention with respect to the quantum of support.

E. DURATION OF THE ORDER AND REMEDY

33As noted, the Motion Judge ordered spousal support until the death of the Appellant assuming the life insurance remained in place or until the death of the Respondent. The Appellant argued that the Motion Judge erred in ordering support for the Respondent beyond at latest when the Respondent starts taking her pension. At paragraphs 45 and 46 of his reasons, the Motion Judge appropriately based the duration of his order on the 33 year length of the marriage, and the needs and compensatory elements justifying the support.

34However, the Motion Judge was aware that the Respondent would receive a pension of well in excess of $20,000 per year when she decided to draw on it. While he mentioned her future pension, he did not take that fact into account in determining either the quantum of support or the duration of his order, and he gave no reason for doing so when he made the support payable until the death of one of the parties. That was an error in principle.

35Accordingly, I would allow the appeal only to the extent of varying the Order to add a paragraph 7 which provides: “Either party may make application to vary this order on the basis of a material change in circumstances. Such a material change in circumstances may include the Respondent’s entitlement to draw on her pension.” The appeal is otherwise dismissed.

V. COSTS

36Since success is divided, I would order that the parties bear their own costs of the appeal.

Bloom, J.

I agree ---------------------------------------------

Swinton, J.

I agree -------------------------------------------- Pattillo, J.

Released: January 15, 2021

CITATION: Dillman v. Dillman, 2021 ONSC 326

DIVISIONAL COURT FILE NO.: DC-19-113