Ottawa Citizen
Wednesday 17 January 2001

Top court to rule on pensions, divorce

Court asked to deny bid to 'double dip' into ex-husband's reduced income

Janice Tibbetts
The Ottawa Citizen

In a case that could have high stakes for aging baby boomers, Willis Boston will ask the Supreme Court of Canada today to reduce his support payments to his former wife now that he is retired and living on his pension.

Mr. Boston, of South Fredericksburg, Ont., will watch as his lawyers argue that his former spouse should not be able to "double dip" after she traded her claim to his $96,000-a-year pension in exchange for almost half a million dollars in assets seven years ago.

"If you don't call it double dipping, what do you call it?" asked the 67-year old former director of education for the Lennox and Addington County school board in southeastern Ontario.

"I forfeited all my money and just walked out with my clothes. I thought I had my pension, but now I've found that I don't have that."

Mr. Boston, who retired three years ago and is president of the Canadian Alliance riding association for Hastings, Frontenac, Lennox and Addington, will ask the judges to restore a 1999 court order reducing his monthly support payments to Shirley Boston to $950.

Lawyers for Mrs. Boston, 63, will counter that the court should uphold the $2,000 monthly payments awarded by the Ontario Court of Appeal on the grounds that her need for money has not diminished and he has the financial means to pay. He was paying $3,200 a month until his retirement.

"The so-called problem of 'double dipping' represents an attempt by payors to insulate income without proper regard to the recipient's need or entitlement to compensation," says a legal brief filed by the Legal Education and Action Fund, a women's advocacy group intervening on Mrs. Boston's behalf.

LEAF, whose court submission details the economic loss that women traditionally suffer after divorce, asks the court to deliver a ruling that addresses "the feminization of poverty, thereby promoting women's equality rights."

The legal battle, which is being closely watched by family lawyers who are seeking much-needed direction on the issue, is the latest in a series of recent cases in which the court has been asked to fine-tune financial obligations when a marriage falls apart.

The Bostons, who married in 1955 and separated in 1991, had a traditional marriage in which he was the money earner, earning $115,500 at the time of their split. She raised their seven children, who are now university-educated adults.

In their 1994 divorce settlement, Mrs. Boston bargained away her claim to her husband's pension, valued at the time at $333,000, in exchange for support payments and the couple's mortgage-free five-bedroom home, sitting on 168 acres of farmland near Roblin, Ont., say court documents.

The $250,000 house and other belongings, including a two-year-old Honda, RRSPs and her share of the proceeds of three vacant lots and the family cottage, left her with $495,000 in assets.

Mr. Boston assumed the debts and now lives in a two-bedroom home owned by his new wife, who is a part-time nurse. He describes his former wife as "a very wealthy woman."

Mrs. Boston, who has never had a paying job but has served in high-profile volunteer positions, including chairwoman of the Kingston, Frontenac, Lennox and Addington District Health Council, receives about $3,240 a year from the Canada Pension Plan and another $3,000 in farming income, as well as her support payments.

Mr. Boston will ask the Supreme Court to find that his former wife should have invested her assets to provide for her own retirement.

Mrs. Boston's court brief states that if she were to invest as much as $260,000, without selling her home, she would receive income of only $10,000 to $13,000 annually.

In 1999, an Ontario court judge substantially lowered Mr. Boston's support payments by concluding that Mrs. Boston "cannot continue to save her money and live on the liquidation of the husband's main asset from the marriage, namely his pension."

The Supreme Court has sent repeated messages that it is loath to interfere with the family courts by allowing appeal courts to override rulings made by front-line judges who are in the best position to appreciate the facts.

Other support battles settled by the Supreme Court in recent years include:

- In July 1999, the court settled a 10-year pension battle between Ted Best, a retired Ottawa school board chairman, and his former wife in a ruling that tied a spouse's pension entitlement to the duration of the marriage rather than the actual value of the pension.

- In recognition that Walter Hickey's income had doubled in the decade after his divorce, the court increased his monthly payments to his teenage sons.

- Also in 1999, the court ruled in the case of Marie Bracklow that healthy spouses can be on the hook financially to sick ones, even after the shortest of marriages.

Copyright 2001 Ottawa Citizen Group Inc.