Slongo v. Slongo

Ontario Reports

Court of Appeal for Ontario

Simmons, LaForme and Pardu JJ.A.

April 3, 2017

137 O.R. (3d) 654 | 2017 ONCA 272

Case Summary

Family law — Support — Spousal support — Variation — Parties separating in 2007 after lengthy traditional marriage — Husband accepting early retirement package in 2012 at age 53 — Wife bringing motion to vary spousal support based on material change in circumstances — Motion judge varying spousal support to amount significantly below Guidelines range — Motion judge erring in departing from Guidelines based on good luck associated with husband's early pension payout and his finding that wife was mismanaging her affairs — Motion judge also misunderstanding Guidelines range when using it to "check" on his own figures — Spousal Support Advisory Guidelines.

The parties separated in 2007 after almost 23 years of marriage, during which the wife remained in the home to care for the children and manage the household. They entered into a separation agreement which provided that the husband would pay child support until "one" of certain specified events occurred with respect to any of the children. The agreement also provided that the husband would pay spousal support to the wife, subject to variation based on a material change in circumstances. In 2012, at the age of 53, the husband accepted an early retirement package from his employer and elected to receive the commuted value of his pension, totalling almost $2 million, payable in six instalments on September 1 of each year. At that time, the husband was paying spousal support in the amount of $2,650 monthly. The husband terminated child support payments for the parties' youngest child effective December 1, 2012, at which point the child was 20 years old and had completed her full-time studies. In April 2013, the wife brought a motion for retroactive and ongoing child support for the youngest child and to vary spousal support based on a material change in circumstances. The motion judge dismissed the child support claim. He found that the husband's early retirement amounted to a material change in circumstances. He varied spousal support to $5,000 per month, an amount considerably lower than the range set out in the Spousal Support Advisory Guidelines. The wife appealed.

Held, the appeal should be allowed in part.

The motion judge did not err in dismissing the child support claim. Two of the triggering events in the separation agreement had occurred: the child had attained the age of 18 and ceased full-time attendance at an educational institution; and the child was no longer a child of the marriage. Either one of those events would have been sufficient. The fact that other triggering events set out in the agreement had not occurred was irrelevant.

The Spousal Support Advisory Guidelines, while not binding, should not be lightly departed from. The motion judge erred in departing from the Guidelines for the reasons he did, namely, the good luck associated with the husband's early pension payout opportunity, and his finding that the wife was mismanaging her affairs. In the face of a very strong compensatory basis for entitlement to support, as well as an income increase arising from the very same job that the husband occupied throughout the 23-year traditional marriage, there was no reason for the motion judge to conclude that the underlying assumptions of the Guidelines were now less helpful. A significant amount of the unequalized portion of the early pension payout was earned while the parties cohabited. Post-separation earnings were achieved at the level at which they were, at least in part, because of the wife's contribution to the husband's career. In those circumstances, the good fortune involved in the early pension should accrue, at least to some extent, to both parties. The wife had not behaved unreasonably in using her equalization payment to purchase a four-bedroom house. Her financial decisions did not justify a departure from the Guidelines. Finally, in using the Guidelines as a "check" on his own figures, the motion judge significantly misapprehended the numbers that the Guidelines would generate in this case. He erred in overlooking the fact that this was a "cross-over" case. Given that the motion judge terminated child support, spousal support had to be determined using the "without child support" formula under the Guidelines. The motion judge also significantly misapprehended the parties' positions on the Guidelines inputs. Spousal support should be varied to $20,000 per month in 2013 and $8,500 per month in 2013. From 2014 onwards, support should be based on a calculation of the husband's income in which 31.78 per cent of the pension payout he received in that year was deducted from his line 150 income for that year.

Cases Referred To

Beninger v. Beninger, 2007 BCCA 619; Boston v. Boston, 2001 SCC 43; Cymbalisty v. Cymbalisty, 2003 MBCA 138; Gray v. Gray, 2014 ONCA 659; Hickey v. Hickey; Housen v. Nikolaisen, 2002 SCC 33; Marinangeli v. Marinangeli; Pustai v. Pustai, 2014 ONCA 422; Thompson v. Thompson, 2013 ONSC 5500

Statutes Referred To

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17(7)

Rules and Regulations Referred To

Federal Child Support Guidelines, SOR/97-175, ss. 15, 16, 17, 18, 19, 20, Sch. III

Authorities Referred To

Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008)

APPEAL from the order of Lemon J., 2015 ONSC 2093, 59 R.F.L. (7th) 52 (S.C.J.) dismissing a claim for child support and varying spousal support.

Paul C. Buttigieg and Robert A. Fernandes, for appellant.

Herschel I. Fogelman and Erin L. Chaiton-Murray, for respondent.

The judgment of the court was delivered by

SIMMONS J.A.:

A. Introduction

[1] The issues on appeal relate to orders made on a change motion brought by the wife after the husband accepted an early retirement package from his employer.

[2] The first issue concerns whether the motion judge erred in terminating the child support payable for the parties' youngest child.

[3] The second issue concerns whether the motion judge erred in determining the additional spousal support payable to the wife based on the husband's increased income due to receiving an early pension payout.

[4] The parties married in 1984 and separated in 2007, after almost 23 years of marital cohabitation. They have three children, born in January 1987, June 1989 and January 1992, respectively. The marriage was a traditional marriage, in which the wife stopped working shortly before the first child was born and thereafter remained in the home to care for the children and manage the household.

[5] In June 2008, the parties entered into a separation agreement. Among other things, the separation agreement provided that the husband would pay child support to the wife until "one" of certain specified events occurred with respect to any of the children.

[6] The separation agreement also provided that the husband would pay spousal support to the wife, subject to variation based on a material change in circumstances, which could include an increase in the husband's income beyond $145,000, a change in the number of children being supported or the husband's "cessation of employment prior to age 65".

[7] In August 2012, at the age of 53, the husband accepted an early retirement package from his employer under which he resigned from his employment and elected to receive the commuted value of his pension, totalling $1,943,000.07 including interest, payable in six instalments on September 1 of each year commencing September 1, 2012. The moneys were paid partly as taxable income ($1,296,167.01, payable in six instalments) and partly into a locked-in retirement account ("LIRA") ($646,833.06, payable in six instalments). Soon after his resignation, the husband began working as a consultant for his former employer, billing his time out at $115 to $125 per hour.

[8] The husband terminated child support payments for the youngest child effective December 1, 2012. As of that date, the child was 20 years old, had completed her full-time studies in early childhood education and was one credit short of obtaining a certificate in that program. The child subsequently re-took the credit and obtained her certificate in May 2013.

[9] The change motion was launched in April 2013, heard in October 2014 and February 2015, and determined on March 31, 2015.

[10] In his reasons, the motion judge found that the parties' youngest child was not entitled to support under the separation agreement after December 1, 2012 as the child was by then over the age of 18 years and had ceased full-time attendance at an educational institution -- one of the triggering events for termination under the separation agreement. The motion judge went on to conclude that the child was no longer a child of the marriage within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as she was over the age of majority and "not unable to obtain the necessaries of life". He therefore dismissed the wife's claim for retroactive and ongoing child support as of January 1, 2013.

B. The Child Support Issue

[15] The wife submits that the motion judge erred in determining that the youngest child no longer qualified for child support under the separation agreement as of January 1, 2013 or, in the alternative, that she was no longer a child of the marriage within the meaning of the Divorce Act. She asks for an order that the husband pay retroactive child support for the period January 1, 2013 to May 1, 2013 based on the husband's taxable income for 2013 plus the $57,000 imputed to the husband by the motion judge.

[16] The wife contends that, under the terms of the separation agreement, the husband was obliged to continue supporting the child until the child obtained one post-secondary degree. In the alternative, she argues that, because the child remained dependent on the wife, the motion judge erred in finding that the child no longer qualified as a child of the marriage under the Divorce Act.

[17] I would not accept these submissions.

[18] The relevant portions of para. 12 of the separation agreement read as follows:

12. . . . The parties agree that the Husband's obligation to pay child support to the Wife shall continue until one of the following occurs with respect to any of the Children:

b. the Child becomes 18 years of age and ceases to be in full-time attendance (except for school vacations) at an educational institution;

c. the Child obtains one post-secondary educational degree or diploma or turns twenty-three years of age, whichever occurs first. In the event that the Child turns 23 years of age and has not yet completed her undergraduate degree or diploma, then the child support shall continue until the end of that year, provided that the Child is carrying a full course load;

f. the Child dies; or

g. the Child ceases to be a "child of the marriage" as defined in the Divorce Act or the Guidelines.

[19] The wife asserts that the terms of this provision should be interpreted broadly to benefit the parties' children. As para. 12(c) does not stipulate that a child is required to be in full-time attendance at an educational institution, she maintains that the husband was not entitled to terminate support for the youngest child so long as the child was pursuing a post-secondary degree (including a certificate) and had not yet reached the age of 23.

[20] I disagree. Each of the sub-paragraphs in para. 12 is a triggering event that stipulates conditions under which the husband can terminate child support. The sub-paragraphs do not require the husband to continue paying child support where one of the sub-paragraphs has been triggered just because all of the conditions of another sub-paragraph have not been fulfilled. Sub-paragraph 12(b) is clear. It permitted the husband to terminate child support for the youngest child once she had attained the age of 18 years and ceased full-time attendance at an educational institution. The fact that the child had not yet obtained a post-secondary educational degree or diploma or attained the age of 23 years as required to trigger sub-para. 12(c) was irrelevant to the triggering event upon which the husband relied.

[21] As for the motion judge's finding that the child was no longer a child of the marriage within the meaning the Divorce Act, the motion judge relied on the fact that the child completed her full-time studies in December 2012 and that between January and May 2013, she was re-taking only one credit. Subsequently, the child remained at home to assist her mother and grandmother and also began an online program of continuing education in equine studies. Although not in the form of an affidavit, there was material before the motion judge suggesting the child was working part-time as a stable hand while pursuing her online studies. However, there was no indication of what the child was earning.

[22] While acknowledging that the child remained dependent on her mother, in the motion judge's view, she was capable of earning an income and was "not unable to obtain the necessaries of life".

[23] The motion judge's finding that the child is no longer a child of the marriage within the meaning of the Divorce Act is a finding of mixed fact and law. As such, it is entitled to deference in this court: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8, 10 and 36. The wife has not demonstrated any error in principle or palpable and overriding error in this finding. Nor is it clearly wrong. I can see no basis on which to interfere with it.

C. The Spousal Support Issue

[24] The wife submits that the motion judge erred in declining to apply the Guidelines when determining the quantum of spousal support and that, in any event, having regard to all the circumstances of the case, the quantum of spousal support ordered by the motion judge is clearly wrong.

[25] For reasons that I will explain, I conclude that the motion judge erred in his approach to the spousal support issue in this case. Before examining the motion judge's approach, I will set out some additional background relating to the parties, their arrangements on separation and their positions before the motion judge. As I conclude that the motion judge misstated the parties' positions, I will set them out in some detail.

(1) Background

(a) The parties

[26] The husband was 48 years old at separation, the wife was 46.

[27] Throughout the marriage, the husband was employed as a nuclear safety specialist, initially with Ontario Hydro, and later with two successor companies, first, Ontario Power Generation Inc., and second, Nuclear Safety Solutions Ltd. He began his employment with Ontario Hydro on October 18, 1982. However, his "pension service" (i.e., credited service for the purpose of the pension calculation) commenced on June 1, 1984, shortly before the parties' marriage, on October 13, 1984.

[28] Prior to the birth of the first child, the wife worked as a clerical support worker at Ontario Hydro from 1982 to 1986. As already noted, following the birth of their first child, she remained in the home to care for the children and attend to household tasks. Following the separation, she obtained part-time employment as a cosmetician at various pharmacies.

[29] Over the years following the separation, the wife experienced various health problems. However, in determining the spousal support issue the motion judge stated [at para. 143], the wife "appears to be doing the best she can to obtain income given her job experience, health and age. She still has a significant need for spousal support."

(b) The separation agreement: property and equalization

[30] The separation agreement required that the husband pay to the wife an equalization payment of $127,336.39. A handwritten provision stipulated that the equalization payment was "largely as a result of the Husband's equalizing his pension based on a pension valuation prepared by Mel Norton and a pension value of $268,133".

[31] The separation agreement also indicated that the parties' jointly owned matrimonial home had been sold for $1 million and that the net proceeds of sale, in the amount of $220,684.13, would be paid to the wife, partly on account of the equalization payment.

(c) The separation agreement: child support

[32] The separation agreement required that the husband pay the wife $1,760 per month on account of child support for two children based on an agreed annual income of $130,000 for the husband and zero dollars for the wife. The separation agreement disclosed that the husband had earned the following amounts from 2003 to 2007 and that he estimated he would earn approximately $120,000 in 2008:

• 2003 -- $117,176
• 2004 -- $140,381
• 2005 -- $146,710
• 2006 -- $141,774
• 2007 -- $142,000

(d) The separation agreement: spousal support

[33] The separation agreement required that the husband pay to the wife $2,000 per month on account of spousal support commencing July 1, 2008 and, in addition, pay her monthly car lease in the amount of $369.99. On the expiry of the car lease in October 2010, the husband was to pay, as lump sum spousal support, $10,579.70 to pay out the lease.

(e) The separation agreement: ongoing disclosure and variation

[34] Paragraph 16 of the separation agreement requires the parties to exchange financial disclosure annually and to "readjust the child and spousal support payable to try and avoid the cost of an unnecessary court application".

[35] Paragraphs 19 to 25 of the separation agreement address variation based on a material change in circumstances. Paragraph 20 stipulates that either party may seek a change in child or spousal support in the event of a material change in circumstances.

[36] Paragraph 21 specifies that a material change may be "foreseen, unforeseen, foreseeable or unforeseeable" and that it may include certain specified events such as retirement at the "normal" retirement of 65 and a change in the number of children entitled to receive support under the agreement.

[37] Paragraph 21 also stipulates that a material change shall be deemed to exclude the wife earning business or employment income of up to $30,000 per calendar year or the husband earning up to $145,000 per calendar year.

[38] Significantly, para. 21 acknowledges that the husband's "cessation of employment prior to age 65 may constitute a material change in circumstances". Paragraph 21(a) states:

21. A material change in the condition, means, needs or other circumstances of the parties or Children may be foreseen, unforeseen, foreseeable or unforeseeable, and may include:

(a) a material change in either party's financial position. The parties acknowledge and agree that at the present time, the Husband is intending to continue to work at Nuclear Safety Solutions Ltd. until he turns age 65 (i.e. August 1, 2024), notwithstanding he will be eligible to retire early from Nuclear Safety Solutions Ltd. on an unreduced pension effective on and after August 1, 2012. For the purposes of determining if a change in the quantum of periodic spousal support payable by the Husband to the Wife from and after August 1, 2012 to August 1, 2024 is warranted pursuant to paragraph 17 above, the parties acknowledge and agree that the Husband's cessation of employment prior to age 65 may constitute a material change in circumstances.

(f) The separation agreement: release of pension rights

[39] Paragraph 33 of the separation agreement provides that, "[e]xcept as otherwise provided in this agreement . . . neither the Husband nor the Wife shall be entitled to share or to receive any benefits . . . in respect of, any pension of the other . . .".

[40] Paragraph 34 stipulates that each party is entitled to sue the other for pension benefits received contrary to the terms of the separation agreement.

[41] The full text of paras. 33 and 34 are set out in Appendix "A" to these reasons.

(g) Prior amendments to the support provisions of the separation agreement

[42] The parties agreed to amend the support payable under the separation agreement in 2009 and 2011.

[43] By consent order dated September 15, 2009, child support was increased to $2,000 per month and spousal support was increased by $500 per month, plus $150 per month upon the parties' divorce to replace the medical benefits formerly available to the wife.

[44] By consent order dated November 28, 2011, the previous $500 per month increase in spousal support was continued, such that the total monthly spousal support payable, including the replacement payment for medical benefits, remained at $2,650.

(h) The husband's early retirement

[45] On August 24, 2012, the husband resigned from his long-standing employment and accepted an early retirement package under which he was to receive the commuted value of his pension as calculated by his employer, payable in six instalments on September 1 of each year, commencing September 1, 2012. As indicated above, the husband began performing consulting work for his former employer soon after retiring. The details of the husband's pension payout are set out below:

Year	Taxable Income	LIRA	Total
2012	$688,139	$107,695	$795,834
2013	$134,931	$107,695	$242,626
2014	$134,931	$107,695	$242,626
2015	$134,931	$107,695	$242,626
2016	$134,931	$107,695	$242,626
2017	$134,931	$107,695	$242,626

(i) The wife's change motion

[46] The wife's change motion was issued on April 9, 2013. In addition to child support, the wife requested that the November 28, 2011 spousal support order be terminated effective December 31, 2011 and asked for an order for "lump sum compensatory spousal support . . . in a fair and equitable portion from the [husband's] employment pension payout, that he received in or about August 2012".

[47] In a further notice of motion returnable December 11, 2013 and brought in the same proceeding, among other things, the wife requested:

• a final order varying the September 15, 2009 order and the November 28, 2011 order such that periodic spousal support of $7,469 per month be paid commencing January 1, 2014;

• a final order fixing spousal support arrears in the following amounts for the following years: (i) 2011 -- $6,984; (ii) 2012 -- $31,464; (iii) 2013 -- $57,828;

• a final order imputing income to the husband of $49,865.56 between 2012 and 2024 and $43,220.33 beginning in 2025 "representing the portion of the Husband's fully indexed annual pension earned during marital cohabitation which was not captured" in the 2008 equalization settlement.

(j) The expert evidence on the change motion concerning the husband's pension

[48] The 2007 pension valuation prepared by Mel Norton, which was referred to in the separation agreement, formed part of the record on the change motion. It included a summary setting out the present value of the husband's pension asset acquired during marriage based on two different potential retirement dates, namely:

• August 1, 2012, the earliest date on which the husband could retire and receive an unreduced pension (the "early retirement date"); and

• August 1, 2024, the husband's age 65 retirement date.

[49] Assuming a tax rate of 25.8 per cent, the after-tax value of the pension asset that was acquired during marriage was $589,205 based on the early retirement date -- and $268,133 based on age 65 retirement.

[50] Both parties led additional expert evidence on the change motion relating to the husband's pension.

[51] On consent of the parties, the husband's expert's reports, prepared by DSW Actuarial Services Inc. ("DSW"), consisting of a report and a supplementary report, were simply filed as exhibits; the wife's expert's report, prepared by Mr. Norton (the husband's expert for the 2007 pension valuation), was filed as an exhibit and Mr. Norton also testified before the motion judge.

[52] DSW's reports responded to a question from counsel about why the value of the husband's pension had increased from the value assumed for equalization purposes as at the date of separation. The reports did not provide a specific valuation of the portion of the husband's pension payout that had not been subject to equalization.

[53] Rather, the reports explained that a number of factors affected the change in value -- and that the value attached to a particular factor could change depending on the order of calculation. The author attached an appendix to his second report attributing a specific value to each factor, which he opined "represent[ed] a reasonable estimate of the effect of each factor". However, he cautioned that the appendix was "not the only possible illustration of the effect of each factor".

[54] The salient portions of the appendix to the second report are as follows:

Reconciliation of Change in Value since the Date of Separation

Item	Amount
After Tax Amount September 23, 2007	$268,133
Pre-tax Amount	$361,365
Retirement Age Earlier than Assumed	$433,000
Passage of Time	$215,000
Pre-Marriage and Post Separation Service	$253,000
Change in Interest Rates	$267,000
Change in the Mortality Assumption	$227,000
Post-Retirement Survivor Benefits	$184,000
Miscellaneous	-$57,969
Pre-tax Amount August 24, 2012	$1,882,396
Approximate After-Tax Amount	$1,200,000

[55] The report prepared by the wife's expert, Mr. Norton, was directed at "assist[ing] in the determination of the portion of [the husband's pension plan entitlements] that had been equalized, and the portion . . . that had not been equalized".

[56] In his report, Mr. Norton re-valued the husband's pension entitlement replacing the previous assumptions about retirement date and pension amount with the known date and amounts. In the result, he arrived at a value of $843,603 (the "2012 valuation") -- as compared to his 2007 valuation of $268,133. In his opinion, this meant that the ratio of $268,133 divided by $843,603 -- or 31.78 per cent -- of the commuted value of the pension had been equalized, whereas 68.22 per cent of the commuted value of the pension had not been equalized.

[57] In his report, Mr. Norton expressed the view that a better approach to the matter might be to deem the husband to be receiving the early pension payout in the form of an annual lifetime income stream. 68.22 per cent of this amount could then be treated as available for spousal support. In that case, the unequalized portion of the husband's pension payments would total $49,865.56 prior to August 1, 2024, and $43,220.33 thereafter.

[58] In his report, Mr. Norton explained that his 2012 valuation included amounts for "retirement date earlier than assumed" and for pre-marriage and post-separation service, but effectively left unchanged the assumptions from 2007 about mortality, interest and tax.

[59] Concerning the appendix to DSW's second report, Mr. Norton opined that the figures attributable to each factor only applied if you did the calculations in the order in which DSW set out the factors. If you did the calculations in a different order, the number attributable to each factor, but not the total, would change. Moreover, because "retirement age earlier than assumed" was the first factor in DSW's ordering, the value attributed to that factor would never decrease if the ordering changed -- rather, it would only become larger. In Mr. Norton's view, no particular order is correct.

[60] The crux of Mr. Norton's valuation conclusion is set out in Appendix "B" to these reasons.

(k) Procedural history of the wife's change motion

[61] The change motion was heard initially on October 21 and 22, 2014. Following the October 21-22, 2014 hearing, the motion judge issued an endorsement on November 26, 2014 indicating he was satisfied that there had been a material change in circumstances such that spousal support should be varied and that the claim for child support should be dismissed. However, he indicated that he was left with certain questions concerning the expert evidence.

[62] In particular, the motion judge felt unable, without further assistance, to determine what ordering of the factors in the appendix to DSW's second report would be best in this case. He was also uncertain whether to accept the percentage difference between equalized and unequalized amounts as set out in Mr. Norton's report. The motion judge indicated that he had not yet made a decision about whether the Guidelines should apply, but noted that the parties had not made submissions concerning mean-and-needs based support. Accordingly, he asked whether he should receive further expert evidence, and requested submissions on what the spousal support should be if the Guidelines did not apply.

[63] The change motion hearing resumed on February 13, 2015. On that date, among other things, the motion judge accepted the wife's counsel's submissions that he should not receive further evidence from the experts. The motion judge refused the wife's request to file a further affidavit indicating she had lost her job. He went on to receive further submissions from counsel concerning a means-and-needs approach to support.

(l) The husband's circumstances at the time of the change motion

[64] The motion judge found that the husband had re-partnered at the time of the change motion and that his new spouse's annual income as a part-time nurse was approximately $80,000. He also found that, in 2012, the husband's income from employment was $123,047, his net professional income was $43,728 and his line 150 income was $859,919, and that, in 2013, the husband's net professional income was $176,868 and his line 150 income was $329,106.

(m) The wife's circumstances at the time of the change motion

[65] The motion judge found that the wife earned approximately $27,000 in 2012; approximately $25,000 in 2013; and that her May 2014 financial statement reflected earnings of less than $600 per month. The wife had not re-partnered and, as indicated above, was apparently experiencing certain health problems.

[66] The wife also had financial problems. Following the separation, she purchased a two-storey, four-bedroom house for $442,000. To finance the house, she used her equalization payment and also obtained a mortgage for $287,300 at an interest rate of prime less 0.6 per cent. In May 2012, she obtained a new mortgage from the Royal Bank under which she could borrow up to $350,000 at a rate of prime plus 7 per cent. She had two lines of credit totalling almost $100,000, credit card debts totalling over $10,000 and unpaid income and property taxes of approximately $10,000. Despite these issues, her financial statement indicated she had ten cats and five dogs costing approximately $755 per month to maintain.

(n) The parties' positions on the change motion

(i) Submissions at the conclusion of the October 21-22, 2014 hearing

[67] In oral submissions at the conclusion of the October 21-22, 2014 hearing, the wife's counsel sought support at the high end of the Guidelines range based on Mr. Norton's alternate proposal, namely, that $49,865.56 per year should be imputed to the husband on account of unequalized pension income prior to August 1, 2024, and $43,220.33 per year thereafter.

[68] The husband's counsel acknowledged that two of the factors as identified in the appendix to the second DSW report could be considered on the motion to change spousal support, namely, increases in pension value due to pre- and post-separation service and retirement age earlier than assumed.

[69] The husband's counsel asked that the value of the unequalized portion of the pension be fixed at $469,500: one-half of the increased value of the pension attributable to early retirement in the appendix to the second DSW report ($433,000 ÷ 2 = $216,500) plus the increase in value of the pension due to post-separation service ($253,000). The husband's counsel requested that this sum of $469,500 be added to the husband's income, spread over five years, for a total of $93,900 per year.

[70] However, the husband's counsel also submitted that this was an appropriate case for lump sum support. Using the $93,900 figure, he submitted a Guidelines calculation based on a "with child support formula", which produced a lump sum support range of $116,711 to $173,805, subject to a credit for $25,000, paid in advance, after tax.

(ii) Submissions on the February 13, 2015 hearing

[71] During the February 13, 2015 hearing, the motion judge reiterated that he was not yet persuaded that he should apply the Guidelines to determine support and requested submissions "with respect to spousal support without reference to the Guidelines".

[72] The wife claimed monthly expenses of approximately $88,000. Having regard to those expenses, her counsel advanced what he termed "three scenarios". The first two scenarios addressed support for 2013 to 2017, and characterized the husband's pension income differently in each. The first two scenarios also addressed two different splits of the parties' net disposable incomes ("NDI"). Both of these scenarios were premised on the wife having an annual income of $6,770. The third scenario addressed child and spousal support for 2012.

[73] The first scenario was premised on the husband's total taxable income for 2013 ($329,480), which excluded amounts transferred to the LIRA. Based on a 50/50 NDI split, the first scenario yielded Guidelines monthly support of $13,862; based on a 52/48 NDI split, the first scenario yielded Guidelines monthly support of $13,141.

[74] In her second scenario, the wife relied on Mr. Norton's alternate characterization of the unequalized portion of the pension, under which he imputed $49,866 into the husband's income until 2024 and $43,220.33 from 2025 onwards on account of the unequalized portion of the pension. Adding the $49,866 unequalized portion of the pension to the husband's other income sources of $194,548 resulted in a total 2014 income of $244,414. Based on a 50/50 NDI split, the second scenario yielded Guidelines monthly support of $10,284; based on a 52/48 NDI split, the second scenario yielded Guidelines monthly support of $9,755.

[75] As I have said, the third scenario addressed child and spousal support for 2012 and reflected the $688,139 that the husband received from his employer upon retirement. The husband's total income for 2012 was thus $855,919 as per his T1 tax statement (which excluded amounts transferred to a LIRA). Under this scenario, spousal support ranged from $13,299 to $14,894 per month. However, the wife's counsel acknowledged that although the husband received a lump sum of $688,139 cash pension payout in 2012, only $49,866 (i.e., the imputed unequalized pension income on which the wife relied) ought to be considered for the purposes of spousal support since a portion of the pension had already been equalized. On this calculation, the husband's income in 2012 totalled $218,903 and spousal support ranged from $2,955 to $3,392.

[76] Prior to reviewing the scenarios, the wife's counsel submitted that spousal support should be fixed at approximately $13,000 per month commencing January 1, 2013, subject to a credit for amounts paid by the husband, including a $25,000 advance paid in December 2013, plus 2012 arrears.

[77] The husband's counsel submitted that the wife's budget of approximately $7,500 per month was excessive and should be reduced to $4,800 per month, including notional income taxes. He reiterated his previous submissions that the only portions of the husband's pension payments that should be included in the husband's income for the purposes of determining support were (i) the increased pension amount attributable to post-separation service; and (ii) one-half of the increased pension amount attributable to early retirement. He argued that the wife had bargained away her share of the increased pension amount attributable to early retirement when she agreed to an equalization based on an age 65 retirement valuation.

[78] Although it does not form part of the appeal record, it appears that the husband submitted a Guidelines support calculation based on:

• the husband's income consisting of (i) the increased pension amount attributable to post-separation service under the DSW report divided by five; (ii) half of the increased pension amount attributable to early retirement under the DSW report divided by five;

• the wife's income consisting of $31,800 ($2,650 per month in existing spousal support and assuming no other employment income on the wife's part).

[79] This calculation apparently produced what the husband's counsel submitted was a Guidelines range for increased spousal support of between $1,397 and $1,863 per month. In the end, the husband's counsel acknowledged that his client could pay increased spousal support at the high end of this range. He submitted that to the extent this left any shortfall in the wife's budget, she should be able to contribute that amount.

(2) Section 17(7) of the Divorce Act

[80] Section 17(7) of the Divorce Act addresses the factors to be considered on a change motion relating to spousal support:

17(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

(3) The Guidelines

[81] The final version of the Guidelines was published in July 2008. As described in their executive summary, they were developed to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. The Guidelines have not been formally enacted by any level of government. They are, however, a very valuable tool for assessing a reasonable range of spousal support and should not be departed from lightly.

(4) The motion judge's reasons

[82] The motion judge divided his analysis of the spousal support issue into four sections.

[83] In the first section, the motion judge analyzed whether the husband's early retirement brought about a material change in circumstances that would allow for a variation of the existing support order and the separation agreement. He concluded that under the separation agreement, as confirmed by the consent court orders, the following matters could amount to a material change in circumstances and that all had occurred: the husband's early retirement; an increase in the husband's income; and a change in the number of children entitled to child support.

[84] In the second section, the motion judge analyzed to what extent the pension payout had already been equalized.

[85] In the motion judge's view, the wife had relied on an unequalized pension value of $575,470: $843,603, the after-tax value in the 2012 valuation, minus $268,133, the after-tax value in the 2007 valuation. The husband had submitted that, at most, the unequalized value was $321,072: the difference between the two after-tax pension values referred to in Mr. Norton's 2007 valuation, namely, $589,205 (the after-tax value based on the early retirement date) minus $268,133 (the after-tax value based on the age 65 retirement date).

[86] The motion judge concluded that he could not rely on the DSW valuation because it was too subjective and uncertain. Although he had concerns about Mr. Norton's opinion, he concluded that he could accept it, subject to making a deduction for pre-marriage service, which he found had been four and one-half months. The motion judge concluded that the unequalized value of the husband's pension equated to $57,000 after tax over five years, after deducting an amount for pre-marriage service [at paras. 98, 99 and 101]:

It must be kept in mind that, to the extent that the pension has increased in value, [the wife] is only entitled to claim against half of it. If the full value that we now have had been added to [the husband's] net family property at separation, [the wife] would only get a credit for half of it.

And finally, the increased amount is being paid out over five years. So the amount to vary spousal support over those years becomes less significant.

. . . Result

I find that the value of the unequalized portion of [the husband's] pension is $575,470 after-tax or $57,000 annually over 5 years, after deducting an amount for pre-marriage service.

[87] In the third section, the motion judge analyzed to what extent he should rely on the Guidelines if the wife's spousal support was to be varied. After referring to this court's caution in Gray v. Gray, 2014 ONCA 659, at para. 45, about "apply[ing] the [Guidelines] wholesale" where complicating factors exist, such as variations based on post-separation increases in a payor's income, the motion judge concluded, at para. 106, that:

While the Guidelines may be useful in this case as a check, for the reasons that follow, I am not persuaded that that they should be applied as a simple matter of arithmetic.

[88] In the fourth section, the motion judge analyzed the extent to which the wife's spousal support should be varied.

[89] In reaching a conclusion, he reviewed a number of considerations: the circumstances of both parties; the positions of the parties; various legal principles including s. 17(7) of the Divorce Act; the Guidelines factors that could result in high-end spousal support; and principles from various authorities, including Cymbalisty v. Cymbalisty, 2003 MBCA 138; Marinangeli v. Marinangeli; Thompson v. Thompson, 2013 ONSC 5500; Pustai v. Pustai, 2014 ONCA 422; Gray v. Gray and Boston v. Boston, 2001 SCC 43.

[90] Although the motion judge found that, if $57,500 were added to the husband's annual income, the Guidelines would produce a range for spousal support of between $6,000 and $8,000 per month, he concluded [at para. 151] that two factors in particular made the "underlying assumptions of the [Guidelines] less helpful".

[91] Those factors were, first, the fact that there was some element of luck unrelated to the wife's contributions to the husband's career inherent in the husband's opportunity to obtain the early pension payout. But for the opportunity to retire early, the husband may have continued to work as anticipated in the separation agreement. In the motion judge's view [at para. 150], the husband's early pension payout "should not be an opportunity for the court to revisit [the wife's] financial decisions after separation".

[92] The second factor was that the wife had been mismanaging her affairs since separation and had been unreasonable with her expenses.

[93] The motion judge then turned to the factors identified in s. 17(7) of the Divorce Act. While acknowledging the wife's contribution to the husband's professional success, the motion judge [at para. 153] could not see any continuing factor relating to the care of the children "other than to the extent that [the wife] took care of the children to allow [the husband's] success". Further, the motion judge concluded [at para. 155] that the economic hardship the wife was suffering did not arise from the breakdown of the marriage but, rather, from her mismanagement of the equalization payment in 2008. In his view, "[e]ffectively requiring [the husband] to pay [the wife's] debts would not promote economic self-sufficiency".

[94] The motion judge found [at para. 156] that the wife's debt load could be paid off by downsizing "both with respect to her house and her desire to support those around her" and that, "[w]ith that, I am confident that spousal support of $5,000.00 per month as of September 1, 2012 would provide the appropriate support going forward".

[95] In the result, the motion judge held that for the years 2012 through 2017, the parties could impute the sum of $57,000 annually to the husband's income and that the husband should pay spousal support to the wife in the amount of $5,000 per month commencing September 1, 2012.

(5) The wife's position on appeal

[96] The wife raises two main issues on appeal in relation to spousal support. First, she submits that the motion judge erred in declining to apply the Guidelines when determining the quantum of spousal support. Second, she argues that, in any event, having regard to all the circumstances of the case, the quantum of spousal support ordered by the motion judge is clearly wrong.

[97] In support of these arguments, the wife contends that the motion judge erred in failing to recognize that the wife was "crossing over" from the "with child formula" to the "without child" formula and therefore that the support she was receiving under the separation agreement was significantly lower than the support to which she would otherwise have been entitled.

[98] The wife also argues that the motion judge placed undue emphasis on her post-separation financial decisions and, in particular, her decision to acquire a permanent residence for herself and the children using the proceeds of equalization payment.

[99] Finally, the wife argues that the motion judge gave insufficient consideration to the wife's inability to support herself arising from the marriage, its breakdown and her medical situation.

(6) The husband's position on appeal

[100] Relying on Gray v. Gray and Beninger v. Beninger, 2007 BCCA 619, the husband submits that the motion judge did not err in taking a cautious approach to the use of the Guidelines on a change motion and in finding [at para. 106] that "they should [not] be applied as a simple matter of arithmetic".

[101] Further, the husband argues that the motion judge correctly applied the factors set out in s. 17(7) of the Divorce Act, which he found limited the wife's claim for spousal support, including that:

• the wife had been mismanaging her affairs and had not been reasonable with her expenses;

• there were no continuing financial consequences or expenses relating to the obligation to care for children of the marriage;

• the wife's economic hardship arose from her mismanagement of the equalization payment rather than the breakdown of the marriage;

• requiring the husband to effectively pay the wife's post-separation debts would not promote economic self-sufficiency; and

• at least some of the husband's post-separation increase in income resulted from luck unrelated to the wife's contributions to the husband's career.

[102] The husband submits that there is no basis on which to interfere with the motion judge's discretionary decision relating to the quantum of spousal support.

(7) Standard of review

[103] The standard of review on support issues is highly deferential. Appellate courts should not interfere with support orders unless the reasons "disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong": Hickey v. Hickey, at paras. 11-12.

(8) Analysis

[104] I would allow the appeal of the spousal support award. In my view, the motion judge erred in principle in his approach and arrived at an amount that was clearly wrong. I say this for two main reasons.

(a) Erroneous departure from the Guidelines

[105] As already mentioned, the Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support. In my view, the motion judge erred in departing from the Guidelines for the reasons he did, namely, the good luck associated with the husband's early pension payout opportunity (at para. 140) and his finding that the wife was "mismanaging her affairs" (at para. 150).

[106] In the face of a very strong compensatory basis for entitlement to support, as well as an income increase arising from the very same job that the husband occupied throughout the 23-year-long traditional marriage, there was simply no reason to conclude that "the underlying assumptions of the SSAGs [were now] less helpful" (para. 151).

[107] The wife was a stay-at-home mother in an approximately 23-year marriage. The husband does not dispute that his career flourished, at least in part, because the wife assumed responsibility for child care and household management. A significant amount of the unequalized portion of the early pension payout was earned while the parties cohabited. Post-separation earnings were achieved at the level at which they were, at least in part, because of the wife's contribution to the husband's career. The wife did not argue for a Boston v. Boston exception to permit double dipping at this time. In these circumstances, the good fortune involved in the early pension payout should accrue, at least to some extent, to both parties, particularly where, as here, the parties agreed they would share post-separation changes in income.

[108] As for the wife's expenses, before turning to his analysis of the unequalized portion of the pension issue, the motion judge cited Boston v. Boston [at para. 137] for the proposition that, "[w]here a pension is equalized by way of a lump sum payment, the payee is under an obligation to use those assets in an income-producing way . . . to create an aepension' to provide for her future".

[109] However, Boston does not require the payee spouse to immediately invest the equalization assets. Instead, she must use them to generate income by the time the pension-holding spouse retires: see Boston, at para. 54. In this case, the wife had no opportunity to comply with this requirement because the husband opted for early retirement. In any event, however, to the extent that the motion judge relied on the proposition he stated in assessing the reasonableness of the wife's choice to purchase a four-bedroom house with her share of the equalization payment to provide a home for herself and the children before the husband's pension came into pay, he misstated the principle enunciated in Boston.

[110] Moreover, given the length of the marriage, her role in it and her age, the wife is entitled to spousal support on a level commensurate with the standard of living the parties enjoyed during the marriage. As chronicled in the separation agreement, while cohabiting, the parties lived in a house that sold for one million dollars. It was not unreasonable for the wife to purchase a home that would accommodate her and the children before the pension came into play.

[111] In my view, whether viewed cumulatively or in isolation, the good fortune involved in the husband receiving an early pension payout and the wife's financial decisions did not justify the motion judge in departing from the ranges of Guidelines support he was considering.

(b) Misunderstanding of the Guidelines ranges when using them as his "check"

[112] Having, in my view, decided in error that the wife should receive support below the lowest range suggested by the Guidelines, the motion judge still used the Guidelines as a "check" on his own figures (para. 106). In so doing, however, he significantly misapprehended the numbers that the Guidelines would generate in this case. In this way, he not only erred in deciding that the wife should receive support below the lowest Guidelines range, he then calculated a Guidelines number that was itself far too low. This compounded the initial error and led him to accept a means and needs formulation for the spousal support award that was far too low and clearly wrong.

[113] In calculating the Guidelines support amount that would serve as his "check", the motion judge made at least two significant errors.

[114] First, he erred in overlooking the fact that this is a "cross-over" case. Given that the motion judge terminated child support, spousal support had to be determined using the "without child support" formula under the Guidelines, rather than the "with child support" formula. Inherent in that change is a recognition that the spousal support the wife was receiving under the "with child support" formula was lower than the support to which she would have been entitled under the "without child support" formula. Thus, even without the increase in income due to the unequalized pension payout, the spousal support to which the wife was entitled was higher in any event. This was due at least in part to the fact that this was a cross-over case. (The husband's income had also increased.) In any event, the motion judge did not advert to the fact that it was a cross-over case.

[115] Without that acknowledgment, the starting point from which the motion judge assessed the wife's spousal support entitlement was too low: see Guidelines, at c. 14.5.

[116] Second, based on the record that is before us, it appears that the motion judge significantly misapprehended the parties' positions on the Guidelines inputs.

[117] On the question of how much of the pension payout had already been equalized, the motion judge said that the wife's position was that support should be based on an unequalized pension value of $575,470 (the after-tax value of $843,603 in 2012 minus the after-tax value of $268,133 in 2007). He also said that the husband's position was that, at most, the unequalized value of the pension was $321,072. Neither statement is correct.

[118] Neither the wife nor Mr. Norton relied on $575,470 as the unequalized value of the early pension payout that should be used to determine the quantum of spousal support. Rather, Mr. Norton developed a ratio as his primary assessment of the unequalized value of the pension and posited, as an alternative, the amounts of the pre-tax annual payments that would have represented the unequalized value of the pension had the husband elected to receive his pension. The wife relied on those pre-tax alternative values to make her Guidelines submissions.

[119] The husband advocated a maximum pre-tax value of $469,500 as the unequalized portion of the pension. He calculated this figure using pre-tax values from the appendix to the second DSW report: one-half of the additional value attributable to early retirement plus the value of post-retirement service. Ultimately, the motion judge chose not to rely on the DSW report. Moreover, he rejected the husband's argument that the wife had given up her claim to half of the added value attributable to early retirement based on the terms of the contract. In this regard, the motion judge noted that while both early retirement date and age 65 valuations existed when the separation agreement was negotiated, the separation agreement preserved early retirement as a potential material change in circumstances.

[120] No one suggested the approach that the motion judge took, namely, to use after-tax values of a capital asset to calculate the income available for spousal support. And since the Guidelines generate spousal support ranges based on pre-tax income, it is difficult to see how the motion judge could then have appropriately used the Guidelines as a "check" on his own figures.

[121] In the result, in my view, taking account of the parties' actual submissions, at a minimum, the motion judge erred in using after-tax income inputs to assess the available income for support purposes given the Guidelines' use of pre-tax inputs to generate their ranges and his stated goal of using the Guidelines as a "check". He also erred in dividing the result by five when the payout involved six payments payable in six calendar years.

[122] In oral submissions, the panel also raised with counsel the propriety of dividing the unequalized value of the pension in half when assessing the husband's means available for spousal support. In my view, this was yet another error in principle. As husband's counsel indicated before the motion judge -- this was not a re-do of the property settlement. It was a change motion addressing spousal support following several material changes in circumstances: a change in the number of children entitled to support; an early pension payout; and an increase in the husband's income in absolute terms when he changed his status to that of a consultant. Dividing the value of the pension payout in half is a clear error and cannot be permitted to stand.

[123] Based on the foregoing reasons, I would allow the appeal and set aside the motion judge's order relating to spousal support.

(9) Remedy

[124] I have found that the motion judge's reasons reveal reversible error. Under these circumstances, a new hearing on the issue of the quantum of spousal support could be ordered. However, before the motion judge, both parties indicated they wished to avoid the expense of the trial of an issue. On appeal, the wife requested that this court make a final support award. In the circumstances, rather than ordering a new hearing, I would address the issue of what spousal support order should be made.

[125] It is undisputed that the wife is entitled to continuing support. Accordingly, the first question is the husband's means. A related question is how to avoid double recovery in relation to the early pension payout.

[126] As previously noted at footnote 2 of these reasons, in Boston v. Boston, at para. 64, the Supreme Court observed that "[t]o avoid double recovery [in awarding spousal support], the court should, where practicable, focus on that portion of the payor's income and assets that have not been part of the equalization or division of matrimonial assets". In Boston, such income and assets included the portion of the husband's pension income derived from contributions made after the date of separation: see Boston v. Boston (Gen. Div.), at para. 6; and Boston v. Boston (S.C.C.), at paras. 18 and 64.

[127] In this case, the parties disagree about which components of the now-known commuted value of the husband's pension should be treated as not having been part of the equalization. At a minimum, Boston makes clear that increases in pension income attributable to pre-marriage and post-marriage service are potentially available for support (i.e., there is no question that they were not part of the equalization). Further, in this case, the parties' separation agreement made any increase attributable to early retirement potentially available for support. Whether increases attributable to factors such as passage of time (there is now less time to accumulate the capital necessary to pay the pension), changes in interest rates, a change in the mortality assumption and the inclusion of a post-retirement survival benefit should also be treated as available for support is less clear.

[128] Neither party submitted any authorities to address that question. The DSW reports did not opine on the issue. Mr. Norton's approach assumes that increases due to such factors are potentially available for support without explanation. Where the court intends to avoid double dipping, the legal issues as to how the pension income should be apportioned to accomplish this are best left to another case where the issue is more fully addressed by the parties and the court below.

[129] Nonetheless, in all the circumstances, I would rely on Mr. Norton's opinion for the purposes of this case. There is no evidence or authority demonstrating that his approach is clearly wrong. Further, as noted, the parties' separation agreement demonstrates an intention to revisit the issue of support in the event the husband opted for early retirement. That intention supports the conclusion that increases in the husband's income upon early retirement, following equalization of net family property based on a later retirement date, should not necessarily be excluded from the moneys available for support purposes.

[130] I would not, however, adopt Mr. Norton's proposed alternative approach of deeming Mr. Slongo to be in receipt of a fully indexed annual pension. Section 6 of the Guidelines provides that the starting point for determining income for spousal support purposes is the definition of income under the Federal Child Support Guidelines. Sections 15 to 20 and Schedule III of the Federal Child Support Guidelines, SOR/97-175 prescribe the method for determining a spouse's income. Section 16 specifically says that the sources of income set out under the heading "Total income" in the Canada Revenue Agency's T1 General form (line 150 income) are the starting point for determining a spouse's annual income. There is no provision in either set of Guidelines for alternative "notional" approaches. This makes sense for the purposes of both clarity and fairness. A clear starting point for income values is desirable. Moreover, deeming the husband to have a secure indexed pension when he does not is potentially unfair. Unless the parties consent to Mr. Norton's proposed alternative approach, in my view, the support order should be based on the reality of the income stream available to the husband for support purposes.

[131] Accordingly, to calculate the husband's income for support purposes, I would deduct from his line 150 income for each year 31.78 per cent of the pension payout (or eventually of the LIRA payout) he receives in that year.

[132] As the only years for which we have the husband's income figures are 2012 and 2013, I will calculate his income and award support for those years only:

2012

Item	Amount
Line 150 income	$855,919
Less 31.78 per cent of cash pension payout ($688,139)	$218,691
Income for support purposes	$637,228

2013

Item	Amount
Line 150 income	$329,106
Less 31.78 per cent of cash pension payout ($134,931)	$42,881
Income for support purposes	$286,225

[133] The husband's 2012 income yields a Guidelines range for monthly spousal support of between $17,544 and $23,392 (using the wife's income as found by the trial judge -- $27,000). His 2013 income yields a range of $7,510 to $9,796 (using the wife's income as found by the trial judge -- $25,000).

[134] The next issue is setting the level of support. On the one hand, the wife has a strong compensatory claim and should on that basis share significantly in the husband's post-separation increase. At the same time, both the existence of the separation agreement and its terms are relevant factors when a party seeks a change: Hickey, at para. 27. Here, the spousal support initially established in the 2008 separation agreement was in the low to mid range of the Guidelines and the parties' own bargain should be considered. I also recognize that the Guidelines provide at s. 11.1 that after the payor's gross income reaches the ceiling of $350,000, the formulas can no longer be applied automatically. At the same time, the Guidelines make clear that $350,000 is also not a "cap" and that spousal support can and often will increase for income above that ceiling. Given the lump-sum nature of this pension payout, intended to compensate the husband for what would otherwise have been smaller annual payments, it seems appropriate here for the wife to benefit from the application of the formula to the full amount.

[135] Taking account of all of the circumstances, I would now award support to the wife close to the mid-range Guidelines amount.

[136] Accordingly, I would award monthly spousal support to the wife in the following amounts for the following years: 2012 -- $20,000 per month; 2013 -- $8,500 per month. From 2014 forward, the parties should continue with the approach set out in paras. 131-33.

D. Disposition

[137] Based on the foregoing reasons, I would dismiss the wife's appeal relating to child support, allow her appeal concerning spousal support, set aside the motion judge's order concerning spousal support and substitute an order as outlined above in these reasons.

[138] I would award costs of the appeal to the wife in the amount of $12,000 on a partial indemnity scale inclusive of disbursements and applicable taxes. This is somewhat less than the agreed upon amount of $15,000 because success was divided. If the parties are unable to agree on costs in the court below, they may make brief written submissions, the wife's to be filed within 30 days of the release of these reasons, the husband's within 30 days thereafter.

Appeal allowed in part.

APPENDIX "A"

Separation Agreement Provisions

PENSIONS

33. Except as otherwise provided in this agreement, and notwithstanding any designation to the contrary which may pre-date this agreement, neither the Husband nor the Wife shall be entitled to share or to receive any benefits of any kind from, and each party expressly waives all rights to bring any claim, including any claim for a division, in respect of, any pension of the other, or any other company pension plans, deferred profit sharing plans, registered retirement savings plans and registered home ownership plans, except that the survivor may receive survivor's benefits (if any) if a deceased has not remarried and is not living in a common law relationship at death, and has not designated another beneficiary.

RECOVERY

34. To the extent that either party should claim and receive any pension benefit contrary to the provisions and intent of this agreement that will constitute a breach of this agreement, the amount of that benefit will constitute a debt owing by that party to the other for which the other party may sue and this paragraph may be raised as a complete answer to any defence raised by the receiving party to that action.

APPENDIX "B"

Extract from Mr. Norton's Report

The ratio of $268,133 divided by $843,603 (i.e., 31.78%) represents the portion of the commuted value payments that had been equalized. As such, consistent with my understanding of the principles established by the Supreme Court of Canada in Boston vs Boston that generally precludes "double dipping", when considering the issue of post-retirement spousal support, 31.78% of the commuted value amounts should be disregarded, having been equalized, and the complement, 68.22% of the commuted value amounts, having not been equalized, could still be considered as income for post-retirement spousal support purposes.

Perhaps a better approach is to simply deem the husband to be receiving his pension entitlements in the form of lifetime income, namely a fully-indexed annual pension of $72,468.48 prior to August 1, 2024 and a fully-indexed annual pension of $62,811.12 from August 1, 2024 onward. Of these fully-indexed annual amounts, 68.22% or $49,865.56 prior to August 1, 2024 and $43,220.33 thereafter would be deemed income to the husband for purposes of considering on-going lifetime spousal support.

(Emphasis in original)