“The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or its breakdown. There is no reason per sethat spousal support cannot continue past the date of retirement of the pension-holding spouse. However, several factors must be considered in making that decision. On retirement, the pension-holding spouse may apply to vary the support order if his ability to paysupport is compromised (see Linton, supra, at p. 31, and Rivers, supra, at para. 17). The decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances pursuant to s. 37(2)of theFamily Law Act.
The payee spouse’s need and the payor spouse’s ability to pay are always factors which a court considers when determining spousal support (see s. 33(9)of the Family Law Act). Another issue is the extent, if any, of “double recovery”.
How is double recovery fairlyavoided? (See Shadbolt, supra, perCzutrin J., at para. 46.) 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. This is particularly true where the payee spouse receives capital assets which she then retains to grow her estate. The comments of Walker, supra, at p. 233, bear echoing:
It is well-recognized that a borrower should not be compelled to continue monthly loan payments to the lender if the borrower has previously paid the full amount owing. “Double dipping” is analogous to such a situation and is logically and mathematically indefensible.
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 (see Hutchison, supra, at para. 9). In this appeal, that would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property.
Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset. 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, which is not the case in this appeal.”
Boston v. Boston, [2001] 2 SCR 413, 2001 SCC 43 (CanLII) at 61-65