Law Times

November 22, 2010

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/50365

Contents of this Issue

Navigation

Page 5 of 15

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2010 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter The high cost of justice I t's a staggering price tag for a crimi- nal investigation and trial. But as Canadians have gotten used to big bills for major court cases and inquiries, news last week that the B.C. government spent $105 million to investigate and prosecute serial killer Robert Pickton wasn't necessarily a surprise. In fact, earlier estimates sug- gested it could cost as much as another notoriously expensive legal matter, the Air India case, whose price tag had reached $130 million by 2005. At least the Pickton trial resulted in conviction, a decision upheld by the country's highest court. At the same time, while some people might question the cost of such drawn-out investigations and trials, it's probably wiser to look at the big price tags as symptoms of the problems with police and Crown actions in the first place that we should instead be looking to fix. In the Pickton matter, it's clear that the government will continue paying given that it will be convening a public inquiry into police mishandling of their investigations into the disappearances of women on Vancouver streets who later turned out to be the serial killer's vic- tims. It's certainly worth going through that exercise. Too many women across the country, many of them aboriginal and some of them sex-trade workers, have gone missing for society to con- tinue ignoring the issue. Of course, the public could have saved much of the cost of investigating and prosecuting Pickton if the police had done more to solve the disappearances in the first place. So if the inquiry helps us avoid police errors like that in the future, it will be valuable. Aboriginal groups, meanwhile, have called for an even broader process that goes beyond probing police actions to analyze the social conditions that make women so vulnerable in the first place. On that score, critics could make a valid argument that doing so would be going too far. Nevertheless, the issue of missing women has become such a haunting stain on our society that it's time to explore it fully. While calls for public inquiries have become somewhat of an automatic reac- tion in this country, this is one problem that the country needs to address more fully, whether by a B.C. commission stem- ming from the Pickton case or a national process led by the federal government. It takes a lot to ensure a fair justice system. So while the government had no choice but to spend the money on the Pickton trial, it would be wise to keep paying what's necessary to pre- vent such tragedies from happening again. — Glenn Kauth Dishman a reminder of exceptions on double-dipping I n a recent Superior Court decision, Justice Mary No- lan reminds us of the various exceptions to the rule against double-dipping in spousal sup- port cases. In her judgment in Dishman v. Dishman on Sept. 30, the par- ties had been separated for nearly 10 years. They resolved certain issues on consent, such as equal- ization, custody, access, and ben- efits. Based on an actuarial pen- sion valuation, the parties agreed it was reasonable to expect that Robert Dishman would retire at 59 1/2 years of age. The equaliza- tion payment to Mary Dishman stemmed in part from that pen- sion analysis and was a relevant fact in the latest decision. Another judge determined the issue of spousal support at the trial of the main application. As a result, Mary was to receive spou- sal support of $750 per month for an unspecified duration with the possibility of a review by ei- ther party in three years' time. But what the parties didn't anticipate was an announcement made by Robert's employer in the summer of 2009 that it would be shutting down the automotive plant where he worked within a year. In response, the employer offered its senior employees such as Robert an early retire- ment buyout package. The of- fer was fairly lucrative, consist- ing of a $125,000 lump sum, plus the ability to receive a full pension despite not having had 30 years of service. Robert ac- cepted, thereby retiring at the age of 52 1/2. Now being a retiree, he not surprisingly sought to vary, among other payments, the spou- sal support payable to his former wife by claiming his retirement was a material change in circum- stances and that his income had now decreased substantially. He further argued that much of his pension had already been equal- ized and that the income derived from the unequalized portion was essentially equivalent to Mary's part-time employment income. Therefore, he earned insufficient income upon which to find an amount owing for support. Robert conceded that when the employer announced it would close its plant within a year, he could have kept his em- ployment until the shutdown date and then taken the buyout package. He argued, however, that this decision carried the risk of the employer going bankrupt Family Law By Marta Siemiarczuk before the anticipated shutdown date, which could have resulted in financial disaster. Robert also argued that having been separated for 10 years while faithfully paying support without having tried to review it previ- ously, he had acted responsibly towards his former wife, whom he said was now self-supporting. She disagreed, however, and opposed the motion to change. Referring to a key case on pen- sions and double-dipping, Boston v. Boston, Nolan reviewed certain exceptions to the rule against double-dipping: the fact that a party earned a sufficient portion of the pension after separation; the justification for support was based on a needs as opposed to a compensatory model; and the payor has the ability to pay. Nolan didn't find the argument about prior ability to review sup- port to be persuasive, noting in- stead that the original trial award amount was based on Robert www.lawtimesnews.com having an estimated income of $60,000 per year. By the time he began this motion, his income had increased to $85,000 and had been in that range for some time. In fact, according to No- lan, Mary could have reasonably applied to increase her support payments based on her former husband's higher income. Given that from the outset, the expectation was that Robert would work until he was al- most 60 years old and in light of Mary's continued need for spousal support, Nolan was quick to determine that the payments should keep going. In coming to this conclusion, she relied on the fact that at the age of just 52, Robert didn't seek new employment even though he was medically able to do so while at the same time arguing the court should deem his former wife to be self-supporting. Nolan further relied on the fact that un- like his former wife, Robert had a new partner with financial re- sources assisting with the cost of running a household. The reasons then focused on the question of whether the sup- port should involve a lump sum or continue as periodic payments. Nolan concluded it would be November 22, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guar- anteed. Contact Jacquie Clancy at: jclancy@ clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. easier to generate a predictable in- come stream with monthly pay- ments rather than a lump sum and that such payments would better meet Mary's financial needs arising out of the marital breakdown. While there seems to be little expectation of a support payor having to seek a new job when historical long-term employment ends just a few years away from retirement, Dishman looks at the issue in a more challenging circum- stance. It's the retirement-age nexus, whereby it's not entirely unreasonable to concede that the retirement was warranted yet at the same time entirely reasonable to expect some oth- er form of employment to con- tinue, that creates difficulties. It's with those types of facts that the spectrum of analysis be- comes less predictable. As a result, Dishman illustrates the courts' continued sensitivities to long- term traditional marriages. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Kath- leen Chapman & Associates in London, Ont. She can be reached at msiemiarczuk@gmail.com.

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - November 22, 2010