Law Times

Law Times • June 27, 2016 Page 7 www.lawtimesnews.com Energy conservation: Let's get serious BY DIANNE SAXE A fter 40 years practicing law, I have just submitted my first report as your Envi- ronmental Commissioner of Ontario, called "Conservation: Let's Get Serious." For excellent social, economic, and environmental reasons, Ontario has committed to dramatically re- ducing greenhouse gas emissions. To do so while improving our quality of life, we must become much more efficient in how we use all forms of energy, and we must reduce our use of fossil fuels. Energy conservation and efficiency remain the cheapest and cleanest source of new energy. According to the International Energy Agency, better energy effi- ciency can provide about 40 per cent of the global GHG reductions needed to avoid global warming above 2C. But getting serious about conservation will require sig- nificant legal and policy changes in Ontario. Right now, Ontario's conservation strategy is lop- sided, and it produces lopsided results. Ontario puts most of its conservation effort and investment into conserving electricity, which is the smallest and cleanest of our major sources of energy. Per unit of energy, Ontario ratepayers put more than 10 times the investment into conserving electricity as we did into conserving natural gas or petroleum fuels. The result? Electricity use has gone down, but fossil fuel use has gone up. Except coal, Ontario used more fossil fuels in 2014 than in 2007. More than 80 per cent of our total energy came from hydrocarbons, mostly gasoline and diesel for transportation, plus natural gas. Focusing so heavily on electricity made sense a dec- ade ago, when the electrical system was in crisis, we were facing rotating brownouts, and Ontarians strug- gled to breathe in the smog from burning coal. Since closing the last of Ontario Power Generation's coal-fired plants in 2014, Ontario has had low-emis- sions electricity and much cleaner air. Today, what matters most is reducing fossil fuel con- sumption, because of the existential threat of climate change, while providing a good quality of life for On- tario's growing population. Fifty per cent more people are expected in the Great- er Golden Horseshoe by 2040. What would it take to get serious about conserving fossil fuels? The recommendations in our report are all reasonable, achievable, and based on successful experi- ence here and in other jurisdictions. For example, we recommend that all public bodies in Ontario should get serious about a "cleaner, leaner, greener" approach to fossil fuels. Public bodies should be accountable to the public for the energy that they use, and the first step in ac- countability is transparency. Public buildings vary greatly in their energy use. Why don't we know which public buildings, organiz- ations, or f leets are energy hogs? Our office has put information on our web site that shows the energy footprint of every public building in the Ontario broader public sector for 2011 to 2013. We can do this because the Green Energy Act re- quires mandatory energy reporting for most buildings in the broader public sector. This means municipalities, universities, colleges, schools, and hospitals. When the federal and provincial governments make this infor- mation available for their buildings, we will add it. Our report shows that Ontario has a huge oppor- tunity to save money and emissions by learning from better public buildings. If all BPS buildings performed as efficiently as the top quarter of their building type, taxpayers could save $450 million and 1 megaton of greenhouse gas emis- sions every year. This isn't rocket science; other countries are way ahead of us. Sweden, for example, has decreased its building energy consumption more than 80 per cent in the last 40 years, and it's just as cold there as it is in Ontario. We also recommend that Ontario should move to- wards a level playing field for a sustainable economy. That means rethinking laws that favour car-dependent suburbs, and getting the best bang for our transit buck. Land use is particularly important. Transportation is Ontario's largest source of green- house gas emissions and usually our largest energy use. Transportation demand is driven primarily by how we plan our communities, especially by urban sprawl. For decades, growth patterns have been designed to rely on personal motor vehicles, and to separate em- ployment and residential land uses. Ontario cannot realistically reduce fossil fuel use if we keep build- ing low-density, car-dependent suburbs. Instead, we need land use planning, infrastructure and taxation law, and policy to favour compact complete communities, with enough density to make walk- ing, biking, and transit good-quality options for daily transportation. Fortunately, Ontario is proposing to adopt many of the recommendations of the Crombie Report, "Plan- ning for Health, Prosperity and Growth in the Greater Golden Horseshoe: 2015-2041." Maintaining personal and freight mobility with less fossil fuel use also means a shift to low-carbon fuels and vehicles, including electric vehicles. Ontario is well placed to electrify transportation because of our ample, widely available, low-carbon electricity supply, provided that most vehicle charging occurs off-peak. Natural gas is also gaining acceptance as a less polluting fuel for heavy trucks. A level playing field for a sustainable economy also requires attention to tax policy. Tax breaks that subsidize fossil fuels conf lict dir- ectly with Ontario's energy conservation and climate targets. Canada has made three international commit- ments to phase out fossil fuel subsidies while providing targeted support for those who need it most. Ontario committed in its 2016 climate change strat- egy to "look at removing existing initiatives that sup- port fossil fuel use." Why, then, does Ontario still provide more than half a billion dollars in tax breaks every year to subsidize the consumption of fossil fuels? These subsidies were adopted decades ago, before we understood the harm caused by burning fossil fuels. Now we know better. Why not support activ- ities that promote the public good, not just keep fossil fuels cheap? Ontario already knows how and why to conserve more energy. It's time to get serious and do it. LT uDianne Saxe is the Environmental Commissioner of Ontario, an independent officer of the Legisla- ture who reports on government progress on climate change, energy, and other environmental issues. The ECO is the province's environmental watchdog and champion of Ontarians' environmental rights. COMMENT u SPEAKER'S CORNER Spousal support and double-dipping S pousal support, in my mind, is one of the most complex and fact- driven areas of family law. This is highlighted by a recent case from the Court of Appeal for Ontario, Farnsworth v. Chang, 2016 ONCA 442. In this case, the parties had been married for 32 years, and when they separated, both were in their late sixties. According to the court, they each had individual assets of more than $2 million. One of the husband's assets was a pension. After assessing the equalization of net family property, the wife was awarded an equalization payment of $388,000 from the husband. It appears she was ordered such a large amount in part due to exclu- sions of certain inherited assets but pri- marily as a result of the value of the hus- band's pension. While the facts articulated by the court aren't entirely clear, it appears the hus- band's pension was his primary source of income, while the wife seemingly had no income other than what she could secure from her assets and investments. In addition to his existing assets and pension income, the husband was also embroiled in what was described to be very significant and hotly contested estate litigation with his siblings in Hong Kong. According to the wife's allegations, he stood to inherit such a sub- stantial sum that he would end up in a position to generate $1.5 million worth of income from the inheritance. The husband appealed the equalization payment and spousal support orders, while the wife cross-appealed the is- sues of pre-judgment interest, security for spousal support, indexing spousal support, and the lack of award of compen- satory support, limiting her award to needs-based alone. The parties were both generally unsuc- cessful in their appeals. However, following 12 days of trial, the judge awarded the wife $4,000 per month in spousal support, which would be reviewable if any of the following three events happened: (a) the sale of certain investment properties (and I assume these to be the wife's); (b) the receipt by the wife of her equalization payment; and (c) the completion of the husband's estate litigation (presumably to see what type of income he would have as a result of an in- heritance). The result of the spousal support award was noteworthy to me given that each party has very substantial assets, both parties were in their late sixties, and the husband had now retired, the value of his pension having been fully equalized. The issues raised by the husband in his appeal of the spousal support award related primarily to the fact that the portion of his income from his pension, which was fully equalized, was not backed out of the calculation of his avail- able income for support pur- poses. Generally speaking, when an asset is equalized, the income generated by that asset should be backed out of a support calculation subject to the objectives of a spousal support order as found in the Di- vorce Act, to avoid double-dipping. To that end, it is not surprising that the husband appealed the order for support requiring him to pay $4,000 per month. I highlight this case because it truly il- lustrates that, despite having substantial capital wealth, immediate need of a recip- ient spouse will trump other applicable support principles. In this case, the wife, as found by the trial judge, was 68 years old, she was un- dergoing cancer treatments at the time of trial (which presumably affected her abil- ity to generate income from her capital assets), and her assets, despite being sub- stantial, were not liquid at the time. On that basis, the support was ordered and the wife was allowed to double-dip into the pension income stream. In my view, the result of this case will undoubtedly be more litigation sur- rounding the issue of spousal support, particularly when the husband receives his inheritance. What can be seen from this case is that double-dipping from an income source is still alive and well, when appropriate, at least as a stop-gap measure to address a more short-term need. While some would consider this to go against the principles established in Boston v. Boston, in actuality, this case highlights those principles as Boston never eliminated the potential for double- dipping but rather reminded us that the result has to be just in the circumstances, and appropriate given the objectives of spousal support awards. LT uMarta Siemiarczuk is a lawyer practis- ing family law litigation and collabora- tive family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. Family Law Marta Siemiarczuk

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