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June 23, 2008

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PAGE 6 COMMENT Law Times Group Publisher ..... Karen Lorimer Associate Publisher .... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editors ..... Helen Burnett . . . . . . . . . . . . . . . . . . . . . .Robert Todd Copy Editor .......... Matt LaForge CaseLaw Editor ..... Jennifer Wright Art Director .........Alicia Adamson Production Co-ordinator .. Mary Hatch Electronic Production Specialist ............Derek Welford Advertising Sales .. Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . .Rose Noonan Sales Co-ordinator ........Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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 Inc. 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 you're not alone. But the latest inspiration for that question is particularly over the top. It comes to us courtesy of the Que- bec Superior Court where a judge has overruled a father who grounded his 12-year-old daughter. According to news reports, the dad clipped his precocious pre-teen's wings after she breached house rules, including an order to stay off the internet. The re- sult of her defiance was that she was not allowed to go away on a school trip. That should have been the end of it — a girl in a similar situation would typ- ically flounce away to pout in her room with a voodoo doll, while the father would retain his parental supremacy. I f you find yourselves asking, "How did this get to court in the first place?" more frequently these days, JUNE 23, 2008 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • 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, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Court says father doesn't know best Instead, this kid took her father to court to get his ruling overturned. She won. Justice Suzanne Tessier found in favour Not in this case; not by a long shot. of the girl's legal challenge. It doesn't take much to imagine this child's reaction. The father has filed an appeal. So now, a case that never should have been a case, is an even bigger case? What's next? The Supreme Court of Canada? Kim Beaudoin, the man's lawyer, said in a Canwest News Service story, that the issue is about restoring parental authority, and the case should have been dismissed by Tessier. Absolutely. "I don't think this tribunal was the proper forum for a decision like this one," Beaudoin is quoted by Canwest. But, she told the Globe and Mail, the father is appealing because the court has undercut his authority over his child. Leading up to the grounding, the lass is said to have chatted on web sites her father attempted to block with security settings. It's alleged that the girl used a friend's internet to post photographs of herself in clothing "inappropriate for her age," said the lawyer in the Canwest story. The Globe reported it was on a dating site. The father grounded her fi- nally after a spat with her step-mother. According to AFP, Tessier found the punishment too severe. "It's for her protection," Beaudoin said in the Canwest story, describing her client's disciplinary measures. She noted the recent arrest of a Belgian man in Montreal found in a hotel with a 13-year-old girl. "She's a child," Beaudoin told AFP. "At her age, children test their limits and it's up to their parents to set boundaries. "I started an appeal of the decision S reasoned decision of the Divisional Court, Justice David Aston gave us a useful refresher on the law as it relates to double-dipping an already equalized pension. In Winseck, the husband and wife cohabited for 34 years. Min- utes of settlement were signed in 2000. The husband's pension was equalized based on a 2002 date of retirement. The husband, however, continued to work post-retirement and his total income increased by approximately $5,000 annually. The wife's pension income was o, you drew up a great sepa- ration agreement for your cli- ent four years ago, his or her pension was equalized, everything was going smoothly, and then one day your client calls to say, "I've retired, can I stop paying spousal support now?" Your best answer is "maybe." Double-dipping one's pension is a sensitive topic. Your client has an income, may even be working post-retirement, and your client's spouse may also be retired now and earning less. In Winseck v. Winseck, a well- reached, she was caring for two foster children, and at the time of the variation motion, she was car- ing for four. She received funding for the children, which at the time of the motion amounted to about $4,000 per month. The husband sought to reduce his spousal support payments based on a material change, that being his retirement and based on the double-dipping principle. The wife sought to increase support based on the husband's increase in total income. The motions judge determined the equalized portion of his pen- sion income ought to be excluded from the husband' approximately $10,000 annually. At the time the settlement was in determining the quantum of support, and held the wife would be entitled to approximately $500 per month in ongoing support. However, given that at the time of the settlement she was receiving a parents' allowance for two foster children and now she was receiving the allowance for four, the increased benefits ought to be considered due to certain economies of scale. The motion judge held those added benefits amounted to approxi- mately $500 per month, and as a s total income To dip or not to dip Family Law By Marta Siemiarczuk result, terminated spousal support. Aston, speaking for a unanimous court, upheld the decision. Most importantly, he noted that retire- ment is not the "material change" warranting a variation, which many payors believe ought to be the case. Rather, it is the resulting decrease in income that is the material change. Aston noted while it's correct that, subject to exceptional cases war- ranting double-dipping, the equal- ized portion of pension income ought to be excluded, regard must be had to the total income being earned by the payor. So, in cases such as Mr. Win- seck's, who actually increased his total income, support would con- tinue to be paid, at the appropriate amount. However, because Mrs. Winseck's financial means also increased, support was appropri- ately terminated in this case. Contrast this decision with that www.lawtimesnews.com today to re-establish parental authority, and to ensure that this case doesn't set a precedent," she said. Otherwise, "par- ents are going to be walking on egg- shells from now on." Beaudoin added that she thinks most children have respect for their parents and thus wouldn't go this far, but "it's clear that some would and we have to ask ourselves how far this will go." The girl's lawyer Lucie Fortin told the Globe her client's parents are divorced, the case ended up in court after escalat- ing tensions, and she presented the mo- tion "with a lot of sadness." Meanwhile, Beaudoin asked, "If we don't learn at the age of 12 there are rules to follow, when do we?" Good question. This case is screaming for a time out in the corner. — Gretchen Drummie of Justice Steven Rogin, in Perry v. Perry. In that case, the parties were married for 25 years and the deci- sion arose out of an application for equalization and final relief. The husband was pay- ing interim spousal support of $1,200 per month. The wife's only other source of income was a $64-per-month disability pension. As part of the equalization pro- cess, the husband's pension would be equalized, leaving him with only his pension income, which, by the time the application was decided, was already in pay. His pre-retirement income was in the $75,000 range, and $42,000 post- retirement. He was paying spousal support of $1,200 prior to retire- ment and sought a termination of spousal support obligations. This case illustrates precisely those exceptional circumstances where double-dipping is permis- sible. The factors Rogin found persuasive were, approximately ten years' worth of Perry's pen- sion accumulated post-separa- tion, although no analysis was conducted of the income gen- erated from the non-equalized portion of the pension; the wife's income was at the poverty level and she had a limited ability to earn; the equalization payment would only generate a modest amount of income to her; and the breakdown of the marriage disadvantaged her economically. No doubt much to Perry's sur- prise, the $1,200-per-month sup- port payments were ordered to continue. This just goes to show that financial need is a driving fac- tor in the quantum and duration of support that will be ordered by a court even after a payor retires. These two decisions remind us of the need for caution in how we structure separation agreements and how we approach termination or reduction of spousal support post- retirement. Although our clients may believe that once they retire, especially when a pension has been divided, support obligations will end, it' s not always the case. LT Marta Siemiarczuk is a lawyer practising family law, collabora- tive family law, and civil litiga- tion with the Ottawa office of Bor- den Ladner Gervais LLP. Marta can be reached at msiemiarczuk@ blgcanada.com.

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