PAUL LAWRENCE FOR THE LAWYERS WEEKLY
Julie Hannaford (r) and Golnaz Simaei (l) represented the applicant wife.
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Pollitt
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port to $15,000 per month,
pending his determination of
the size of her lump sum award.
Before Justice Czutrin the
wife had originally asked for
prospective lump sum support
because of uncertainty around
the estate. The husband agreed
to that proposal. But then the
wife changed her mind and
argued for continuing periodic
spousal support. She urged that
the judge could not fairly and
reasonably calculate a lump sum
unless the husband disclosed
how much money he had earned
since the trial ended in October
2009.
The judge released “part one”
of his reasons for judgment,
dated July 19, 2010, only to the
parties and their lawyers (the
reasons were not publicly
released until Feb. 25).
In part one of his reasons,
Justice Czutrin requested the
parties provide submissions
about how he should calculate
the lump sum support (
preferably with a joint actuarial
report), including (but not limited to) submissions on “
variables” such as: the wife’s life
expectancy; the end of child
support; changes for the wife as
she receives Canada Pension
Plan (CPP) payments and when
she will be required to start
withdrawals from her RRSP; at
what age she should be expected
to encroach on her savings; the
husband’s health and life expectancy and its impact on his earnings, and whether he will need
to encroach on his savings; and
the possibility of future variations as his income changes and
his needs change.
Part two of Justice Czutrin’s
judgment, released Feb. 28, concludes the fairest way to assess
lump sum support was to look to
the parties’ own settlement
agreement which provided the
wife with monthly indexed support ($7,922 per month as of
July 1, 2010). The wife had
argued lump sum support
should be based on $15,000 per
month.
According to the actuaries,
the wife’s life expectancy, as a
former smoker, is in the range of
83 to 85.
The wife’s actuary calculated
the present value of $7,922 per
month to be $1,159,000. The
husband’s actuary calculated it
at $1,136,918. Accepting the
wife’s figures — and deducting
amounts for the CPP and RRSP
pension income she will
draw — Justice Czutrin awarded
the wife a lump sum of
$1,019,000. n
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relevance of need, and not just
income-sharing.”
Added Niman, who repre-
sented the applicant wife along
with Julie Hannaford and Gol-
naz Simaei of Toronto’s JK Han-
naford Barristers, “I think it’s
actually the highest lump sum
[prospective spousal] support
order that has been reported.”
The trio’s research indicated
the previous high water mark
was around $500,000.
Simaei told The Lawyers
Weekly the ruling offers family
law practitioners “a roadmap in
terms of the arguments to put
forward for determining the
quantum of lump sum prospect-
ive spousal support,…and the
variables to consider, and the
evidence that you need with
respect to each variable.”
Hannaford suggested family
law lawyers always consider
requesting lump sum spousal
support. “But if you don’t, there
is still a discretion in the court
to order it,” she noted.
She advised “think carefully
about how to define how the
lump sum is to be calculated,
and consider engaging actuarial
experts at the outset to provide
assistance to the court for how
to make those calculations.”
In addition to the prospective
lump sum spousal support of
$1,019,000 awarded to their
client, Lydia Pollitt was also
awarded retroactive child sup-
port for her son of $412,495,
and $184,332 for retroactive
spousal support.
At press time Karon Bales,
who with Charles Beall of
Toronto’s Bales Beall represented the husband, said Murray Pollitt had not yet decided
whether to appeal the judgment.
Bales highlighted Justice
Czutrin’s discussion about lump
sum support as noteworthy for
family law practitioners. She
told The Lawyers Weekly there
is also “a good survey of the case
law with respect to non-recur-
ring income, and whether a
judge should exercise his or her
discretion to exclude it from
income, for the purposes of
determining ‘income’ for sup-
port purposes. From our per-
spective there is good case law
now that if an individual has
income which is unique — [that]
arises from the disposition of a
unique asset [shares in this
case]—then that is not auto-
matically included in ‘income’
for support purposes.”
Bales noted the parties’ two
valuators created a helpful inter-
active spreadsheet for the judge
to assist him in calculating the
dollar consequences of the many
decisions he had to make on
what should be included as
“income.”
The Pollitts, who have three
children, had been married for
nearly 21 years when they separ-
ated in 2000. The wife, now 63,
was a legal secretary, but became
a homemaker after marriage.
She was 52 at the time the pair
separated.
Reasons: Pollitt v. Pollitt, [2011] O.J. No. 869
& [2010] O.J. No. 5905.
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