“The trial judge considered the issue of “so-called” double-dipping and the Supreme Court’s statement in Boston v. Boston, 2001 SCC 43 (CanLII), 2001 SSC 43, [2001] 2 S.C.R. 413 that where practicable, the court should focus on the portion of the payor’s income and assets which have not been a part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown. In Boston, that meant focussing on the portion of the pension that was earned following the date of separation and not included in the equalization of net family property (at para. 64).
However, as the trial judge noted, at para. 57 of Boston, the Supreme Court differentiates pension income from business income or income from an investment:
Pension income is obviously different from business income or income from an investment. See T. Walker, “Double Dipping: Can a Pension Be Both Property and Income?”, in Best of Money & Family Law, vol. 9, No. 12, 1994, in which the author argues that pensions should not be treated as other assets subject to equalization consideration. When a pension produces income the asset is being liquidated. The same capital that was equalized is being converted into an income stream. By contrast, when a business or investment is producing income, that income can be spent without affecting the asset itself. In fact, the business or asset may continue to increase in value. The value of the business or investment can be equalized, but neither is depleted solely by producing income.
In my view, the trial judge correctly held that double recovery of the kind contemplated in Boston is not a concern in a case such as this where the assets involved in the equalization are not liquidating assets or special assets of the nature of a pension.”