“Section 15.24(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support. This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] 1 S.C.R. 920 at para. 29.
In Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550, at para. 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”
Here, the trial judge erred in the same way. Mr. Joseph, counsel for Ms. Greenglass, quite properly concedes the error but describes it as a matter of form over substance. He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.
As will be seen, in the circumstances of this case, Mr. Joseph is correct. That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.”