concerning spousal support and substitute an order as outlined
above in these reasons.
 I would award costs of the appeal to the wife in the
amount of $12,000 on a partial indemnity scale inclusive of disbursements and applicable taxes. This is somewhat less than
the agreed upon amount of $15,000 because success was divided.
If the parties are unable to agree on costs in the court below,
they may make brief written submissions, the wife’s to be filed
within 30 days of the release of these reasons, the husband’s
within 30 days thereafter.
Appeal allowed in part.
Separation Agreement Provisions
33. Except as otherwise provided in this agreement, and notwithstanding
any designation to the contrary which may pre-date this agreement, neither
the Husband nor the Wife shall be entitled to share or to receive any benefits of any kind from, and each party expressly waives all rights to bring any
claim, including any claim for a division, in respect of, any pension of the
other, or any other company pension plans, deferred profit sharing plans,
registered retirement savings plans and registered home ownership plans,
except that the survivor may receive survivor’s benefits (if any) if a deceased
has not remarried and is not living in a common law relationship at death,
and has not designated another beneficiary.
34. To the extent that either party should claim and receive any pension
benefit contrary to the provisions and intent of this agreement that will constitute a breach of this agreement, the amount of that benefit will constitute
a debt owing by that party to the other for which the other party may sue
and this paragraph may be raised as a complete answer to any defence
raised by the receiving party to that action.
Extract from Mr. Norton’s report
The ratio of $263,133 [sic, 268,133])20 divided by $843,603 ( i.e., 31.19%
[sic, 31.78%]) represents the portion of the commuted value payments
that had been equalized. As such, consistent with my understanding of the
principles established by the Supreme Court of Canada in Boston vs Boston
that generally precludes “double dipping”, when considering the issue of
20 It is undisputed that this number is a typographical error and should be
$268,133 and that the resulting ratio should be 31.78 per cent.