Anne Slivinskas

This is a supplementary reasons for judgment regarding costs following an appeal and a Rule 59 motion concerning a pension plan death benefit.

The successful appellant sought substantial indemnity costs payable out of the pension plan fund.

The court found that the litigation clarified a problematic part of the Pension Benefits Act, benefiting members and administrators of plans throughout Ontario.

Applying the principle that costs of litigation necessary for the administration of a trust should be paid from the trust, the court awarded the appellant substantial indemnity costs of $40,000 plus disbursements, payable by the Board from the funds of the Plan.

The Ontario Teachers' Pension Plan Board brought a motion to amend a previous Divisional Court order regarding the allocation of a deceased member's pre-retirement death benefit between his former spouse and his surviving spouse.

The court held that the former spouse's entitlement under a separation agreement was not limited to benefits accrued after 1986, as the Pension Benefits Act provisions allowing assignment of pension benefits on marriage breakdown applied to both pre-1987 and post-1986 benefits.

However, the court found that section 51(2) of the Act limited the former spouse's entitlement to 50% of the benefits accrued during the period of marriage, which ended on the date of their divorce.