Carter v. Carter, (1999) 104 O.T.C. 20 (SC)

• Judge: Kozak, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: August 03, 1999
• Jurisdiction: Ontario
• Citations: (1999), 104 O.T.C. 20 (SC)

Carter v. Carter (1999), 104 O.T.C. 20 (SC)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. SE.009

James Hamilton Carter (applicant) v. Germaine Faith Carter (respondent)

(No. 98-0846)

Indexed As: Carter v. Carter

Court of Ontario

Superior Court of Justice

Thunder Bay

Kozak, J.

August 3, 1999.

Summary:

The parties separated in 1991 after a 24 year traditional marriage. A settlement agreement incorporated into a 1993 final judgment under the Family Law Act provided for the equalization of family property including the husband's pension (valued at $299,409). The wife received the mortgage free matrimonial home ($138,000) and its contents, $51,000 in RRSPs, a new car, a $13,000 mortgage receivable and a $11,000 payment from the husband. The agreement provided that the wife would release any and all interest in the pension. The husband kept two older cars and his pension. The husband was also ordered, inter alia, to pay monthly spousal support of $1,200 (after child support terminated). The settlement provided for a review of the spousal support issue upon the husband's retirement. The parties divorced in 1996. The husband retired in June, 1998. He received a monthly pension income of $3,957.27 and had a net worth of $40,165.84. The wife's net worth was $205,000 (house plus RRSPs) and earned $1,000/month from part-time employment. The husband applied to terminate or reduce his spousal support obligation. He argued, inter alia, that there had been an equalization payment respecting his pension and that it would now be unfair to require him to continue to pay spousal support out of his pension income (double dipping argument). The wife cross-applied for an increase in spousal support.

The Ontario Superior Court reviewed the caselaw respecting double dipping or double recovery issue. The pension was equalized based on a monthly value of $2,200. The current value was actually almost $4,000. The $1,800 difference represented a portion of the pension which was not equalized. A support award from this unequalized portion did not constitute double dipping or double recovery in the true sense of the term. The court found that the wife was not self-sufficient and ordered the husband to pay reduced monthly spousal support of $600. The court stated that the wife had an obligation to make a reasonable and prudent effort to realize a return of income from her assets to attain self-sufficiency, but rejected the husband's request that the wife be required to sell or mortgage the home or rent out rooms.

Editor's Note: for a related decision see 76 O.T.C. 268.

Family Law - Topic 2213

Maintenance of wives and children - Wives - Extent of duty to support - See paragraphs 1 to 39.

Family Law - Topic 2326

Maintenance of wives and children - Maintenance of wives - Effect of income or potential income of claimant - See paragraphs 1 to 39.

Family Law - Topic 2329

Maintenance of wives and children - Maintenance of wives - Considerations (incl. "double-dipping") - See paragraphs 1 to 39.

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds (incl. "double-dipping") - See paragraphs 1 to 39.

Cases Noticed:

Veres v. Veres (1987), 9 R.F.L.(3d) 447 (Ont. H.C.), refd to. [para. 20].

Butt v. Butt (1989), 22 R.F.L.(3d) 415 (Ont. H.C.), refd to. [para. 20].

Linton v. Linton (1990), 42 O.A.C. 328; 30 R.F.L.(3d) 1 (C.A.), refd to. [para. 21].

Flett v. Flett (1992), 43 R.F.L.(3d) 24 (Ont. U.F.C.), refd to. [para. 22].

Rivers v. Rivers (1993), 47 R.F.L.(3d) 90 (Ont. Gen. Div.), refd to. [para. 23].

Nantais v. Nantais (1995), 16 R.F.L.(4th) 201 (Ont. Gen. Div.), refd to. [para. 23].

McDougall v. McDougall (1996), 2 O.T.C. 361 (Gen. Div.), refd to. [para. 23].

Shadbolt v. Shadbolt (1997), 45 O.T.C. 124 (Gen. Div.), refd to. [para. 24].

Schmidt v. Schmidt (1998), 102 B.C.A.C. 124; 166 W.A.C. 124; 36 R.F.L.(4th) 1 (C.A.), refd to. [para. 25].

Hutchison v. Hutchison, [1998] O.J. No. 3027 (Gen. Div.), refd to. [para. 26].

Campbell v. Campbell (1998), 79 O.T.C. 274; 40 R.F.L.(4th) 462 (Gen. Div.), refd to. [para. 27].

Donovan v. Donovan (1999), 91 O.T.C. 200 (Gen. Div.), refd to. [para. 28].

Best v. Best (1999), 242 N.R. 1; 123 O.A.C. 1 (S.C.C.), refd to. [para. 30].

Authors and Works Noticed:

McLeod, James G., Annotation to Flett v. Flett (1992), 43 R.F.L.(3d) 24, generally [para. 22].

Counsel:

Mary Ann Currie, for the applicant;

Douglas Shaw, for the respondent.

This application and cross-application were heard at Thunder Bay, Ontario, by Kozak, J., of the Ontario Superior Court, who delivered the following judgment on August 3, 1999.