“As observed at para. 62 of Boston, the payee spouse’s need and the payor spouse’s ability to pay are factors which the court considers when determining spousal support, as is the extent, if any, of “double recovery.” Double recovery is defined by the Supreme Court as the “situation where a pension, once equalized as property, is treated as income from which the pension-holding spouse must make spousal support payments”: Boston, at para. 34. At para. 63 Major, J. noted that it is generally unfair to allow the payee spouse to reap the benefit of the pension, both as an asset and then again as a source of income. At para. 64 Major, J. stated that “to avoid double recovery, 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 when the payee spouse’s continuing need for support is shown.”
In this case, the applicant’s retirement and diminished income potential is a “material change” to warrant a variation order. This is because the current circumstances would permit a double recovery that was not contemplated by Whitten J. in the initial order. I find that had Whitten J. considered the applicant’s current income from his pension would be used in calculating spousal support, the initial order would have changed in its result.”
At para. 65 Major, J. stated that, in certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset in that double recovery may be permitted:
Where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation.
The two circumstances articulated by Major J., in which double recovery may be permitted, is (1) where the payor spouse has the ability to pay, or (2) where the payee has demonstrated a reasonable effort to use the equalized assets in an income-producing way.”