Hooper v. Hooper; Ontario Pension Board, Intervenor [Indexed as: Hooper v. Hooper]
59 O.R. (3d) 787
[2002] O.J. No. 2158
Docket No. C33400
Court of Appeal for Ontario
Laskin, Goudge and Simmons JJ.A.
May 31, 2002
Family law -- Pensions -- Motions judge erring in appointing wife as equitable receiver of husband's pension to satisfy orders against husband [page788] for support and equalization of net family property -- Applicable pension legislation not permitting equalization order to be enforced against pension where equalization order making no reference to pension -- Appointment of equitable receiver to achieve result which conflicts directly with applicable legislation is not just or convenient -- Ontario Pension Board was already diverting 50 per cent of husband's pension benefits to satisfy his support obligation -- Resort to appointment of equitable receiver unnecessary -- Appointment of wife as equitable receiver set aside -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 -- Pension Benefits Act, R.S.O. 1990, c. P.8 -- Public Service Pension Act, R.S.O. 1990, c. P.48.
Pensions -- Family law -- Motions judge erring in appointing wife as equitable receiver of husband's pension to satisfy orders against husband for support and equalization of net family property -- Applicable pension legislation not permitting equalization order to be enforced against pension where equalization order making no reference to pension -- Appointment of equitable receiver to achieve result which conflicts directly with applicable legislation is not just or convenient -- Ontario Pension Board was already diverting 50 per cent of husband's pension benefits to satisfy his support obligation -- Resort to appointment of equitable receiver unnecessary -- Appointment of wife as equitable receiver set aside -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 -- Pension Benefits Act, R.S.O. 1990, c. P.8 -- Public Service Pension Act, R.S.O. 1990, c. P.48.
The husband was ordered in 1996 to pay the wife spousal support in the amount of $1,400 per month and child support in the amount of $400 per month. He was also ordered to pay the wife $50,000 to equalize their net family property. This obligation was to be discharged by an immediate payment of $5,000 and payment of the balance at the rate of $400 per month. Finally, if the husband received a severance package from his place of employment, these funds were to be paid to the wife to pay down the balance then remaining on the equalization payment. The husband took early retirement at age 59 and began to receive a pension from the Ontario Public Service Pension Plan. He also received a severance package. He neither told the wife about the severance package nor paid it to her. He made the first $5,000 payment required by the equalization order, but made none of the monthly $400 payments. The husband brought an application to vary the support order and to grant relief from the arrears that had accumulated under that order. The wife brought a motion for an order appointing herself receiver of the husband's pension benefits with 50 per cent of those benefits to be applied to his support obligation and 50 per cent to be applied to his equalization obligation. The husband's application was dismissed and the wife's motion was granted. The husband appealed.
Held, the appeal should be allowed in part.
The motions judge did not err in finding that the husband's retirement was voluntary and that the material change in circumstances needed to permit a variation in the support order did not exist.
Under the applicable pension legislation (the Pension Benefits Act and the Public Service Pension Act), pension payments are, in general, immune from execution and assignment. The only exceptions relate to certain orders made against the pensioner pursuant to the Family Law Act, R.S.O. 1990, c. F.3, namely support orders or equalization orders that operate to entitle another to receive the [page789] pension benefits. With each of these exceptions, there is a cap. The legislative objective is to ensure that, so far as possible, an employee's participation in a pension plan over the years will make available benefits to provide the sustenance he or she needs upon retirement. Even in those exceptional cases where an incursion is permitted on that assurance because of the overriding imperatives of family law, an upper limit is in place to preserve this objective to some extent. In this case, the support order could be satisfied by way of execution against the husband's pension, but only to a maximum of one- half of the amount payable to the husband. However, the equalization order made no reference to the husband's pension. It did not divide the pension or order that the equalization payment owing be against the pension. Moreover, the equalization order could not be satisfied by way of execution against the husband's pension, since it was not a support order. Under the relevant pension legislation, then, the equalization order could not be enforced against the husband's pension benefits.
The court's jurisdiction to appoint an equitable receiver is found in s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which authorizes the appointment where it appears to be just or convenient to do so. It would not be just and convenient to appoint an equitable receiver to achieve a result which is in direct conflict with the applicable legislation. The motions judge erred in appointing the wife as equitable receiver to take in 50 per cent of the husband's pension benefits in order to satisfy his equalization obligation.
As for that aspect of the order by which the wife as equitable receiver was to take in 50 per cent of the husband's pension benefits to satisfy his support obligation, this result was being achieved without the need for an equitable receiver. The Ontario Pension Board having been advised of the support order, was simply diverting at source one-half of the husband's pension benefits to the wife to satisfy the husband's support obligation. In these circumstances, it was unnecessary to resort to the device of an equitable receiver with the attendant additional expense and complexity which that appointment might bring. The order appointing the wife as equitable receiver should be set aside.
APPEAL from a judgment dismissing a husband's application to vary a support order and granting a motion appointing a wife as interim receiver of the husband's pension. [page790]
Nicholas v. Nicholas (1998), 37 R.F.L. (4th) 13 (Ont. Gen. Div.); Simon and Simon, Re (1984), 45 O.R. (2d) 534, 2 O.A.C. 299, 7 D.L.R. (4th) 128, 50 C.B.R. 161, 42 C.P.C. 133, 38 R.F.L. (2d) 198 (Div. Ct.), consd Other cases referred to Beattie v. Ladouceur (1995), 23 O.R. (3d) 225, 13 R.F.L. (4th) 435 (Gen. Div.); Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, 201 D.L.R. (4th) 1, 271 N.R. 248, 17 R.F.L. (5th) 4; Lavigne v. Robern (1986), 56 O.R. (2d) 385, 30 D.L.R. (4th) 756, 12 C.P.C. (2d) 87 (H.C.J.); Noriega and Noriega, Re (1979), 23 O.R. (2d) 520, 30 C.B.R. (N.S.) 169, 13 C.P.C. 263 (S.C.) Statutes referred to Canada Pension Plan Act, R.S.C. 1985, c. C-8 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 Family Law Act, R.S.O. 1990, c. F.3 Pension Benefits Act, R.S.O. 1990, c. P.8, s. 52 [as am. s. 51], 65(1), (3), 66(1), (4) Public Service Pension Act, R.S.O. 1990, c. P.48, Sched. 1, s. 27
Bohdan A. Shulakewych, for appellant William Alfred Hooper. Robert J. Nightingale and T.R. MacLeod, for respondent Mary Louise Hooper. Michael W. Kerr, for intervenor Ontario Pension Board.
The judgment of the court was delivered by
1GOUDGE J.A.: -- The primary issue in this appeal is whether the motions judge could properly appoint the wife as an equitable receiver of the husband's pension to satisfy the orders against him for support and equalization of net family property.
2For the reasons that follow, I have concluded that the motions judge erred in doing so because of the legislative regime regulating the husband's pension.
The Facts
3The appellant husband and the respondent wife were married in 1968. They separated in late 1991 or early 1992. On November 22, 1996, Fedak J. issued a judgment in accordance with minutes of settlement between the parties. That judgment ordered, inter alia, that the appellant pay spousal support of $1,400 per month to the respondent and child support for their son of $400 per month in accordance with the Family Law Act, R.S.O. 1990, c. F.3.
4It further ordered that the appellant pay to the respondent $50,000 to equalize their net family property and that this obligation be discharged by an immediate payment of $5,000 and payment of the balance at the rate of $400 per month commencing at the earlier of June 1, 1999 or when their son was no longer a dependant within the meaning of the Family Law Act. Finally, the judgment ordered that if the appellant received a severance package from his place of employment, the Ontario Ministry of Natural Resources, these funds were to be paid to the respondent to pay down the balance then remaining on the equalization order.
5Soon after this consent judgment, the appellant commenced divorce proceedings, which were concluded by a Divorce Judgment on July 17, 1997.
6At the time of the consent judgment in November 1996, the appellant was 57 years old and employed full-time at the Ministry of Natural Resources earning about $55,000 per year. His professed intention at that time was not to retire until he turned 65.
7However, in 1998 he took early retirement at the age of 59 and as a result began to receive a pension from the Ontario Public Service Pension Plan. He also received a severance package [page791] worth $19,640.60 net of taxes. He neither told the respondent about this severance payment nor paid it to her. He simply used it to discharge his own financial obligations to others.
8Thus, while the appellant made the first $5,000 payment required by the equalization order of Fedak J., he has neither made the periodic payments of $400 per month nor paid his severance payment to the respondent as required by that order.
9Since his retirement, the appellant has been living in a common-law relationship and has been essentially self-employed in a business that apparently produces no income for him. While he was able to apply for early retirement benefits from the Canada Pension Plan when he turned 60 on July 19, 1999, he has not done so.
10In short, the appellant has no assets and his only source of income is the monthly payment he receives from the Ontario Pension Board pursuant to the Ontario Public Service Pension Plan.
11For her part, the respondent is totally disabled from working because of a medical condition. Her only sources of income are Canada Pension Plan Disability Benefits and what she has received from the appellant.
12Finally, it is common ground that the parties' son ceased to be a dependant as of May 1, 2001.
The Order Appealed From
13The proceedings below began with an application by the appellant on March 4, 1999 to vary the support ordered by Fedak J. and to grant relief from the arrears that had accumulated under that order.
14The respondent answered with a motion seeking to hold the appellant in contempt for his failure to pay his severance payment to her contrary to the order of Fedak J. The respondent then also sought an order appointing herself receiver of her husband's pension benefits with 50 per cent of those benefits to be applied to his support obligation and 50 per cent to be applied to his equalization obligation as set out in the order of Fedak J. The respondent also sought an order empowering her, as receiver, to apply on behalf of the appellant for early retirement pension benefits under the Canada Pension Plan Act, R.S.C. 1985, c. C-8 and to have any resulting payments to him paid to her to satisfy his support and equalization obligations.
15Matheson J. issued two sets of reasons; one on November 29, 1999 and one on March 6, 2000. The results are incorporated in his order of March 6, 2000 and it is this order which the appellant has appealed.
16Matheson J. determined that the appellant had shown a callous disregard both for the court (particularly in diverting his [page792] severance payment) and for his wife's entitlement to information about his financial situation. This finding provides the backdrop for his various orders.
17First, he dismissed the variation application because he found that the appellant's retirement in 1998 was voluntary and that there was not the required material change in circumstances needed to permit a change in the support ordered by Fedak J.
18Second, in light of the appellant's conduct, particularly, his failure to disclose his severance payment, Matheson J. declined to grant any relief from the outstanding support arrears.
19Third, because of the appellant's conduct in failing to comply with the order of Fedak J., particularly by diverting his severance payment, Matheson J. appointed the respondent as equitable receiver of the appellant's pension benefits from the Ontario Pension Board with one-half of these payments to satisfy the appellant's support obligations and the other half to satisfy the appellant's outstanding equalization obligation pursuant to the order of Fedak J. Matheson J. also ordered that, as receiver, the respondent be empowered to apply for all pension benefits available to the appellant under the Canada Pension Plan Act and to receive any resulting benefits in satisfaction of his support and equalization obligations.
20Fourth, Matheson J. found the appellant in contempt of the order of Fedak J. because of his diversion of his severance payment, but held that he could purge his contempt by co- operating with the respondent in her application on his behalf for his federal pension benefits.
21Finally, Matheson J. ordered that the appellant's equalization obligation of $19,640.60 should attract interest from September 1, 1998 at 6 per cent per year.
22In his first set of reasons, Matheson J. awarded costs of $2,000 to the respondent. Following further submissions he revised this amount in his second set of reasons to $9,590.23 and it is this amount that appears in his order.
Discussion and Analysis
23Before turning to the primary issue in this appeal, I should briefly deal with a number of secondary matters.
24First, Matheson J. granted intervenor status to the Ontario Pension Board, the administrator of the Ontario Public Service Pension Plan, a defined benefit pension plan established under the Public Service Pension Act, R.S.O. 1990, c. P.48. This plan provides pension benefits to retired employees of the Province of Ontario. The intervenor also appeared in this court and provided very useful submissions. [page793]
25Second, the intervenor advised us that since being served with the appellant's notice of appeal, it has withheld all pension payments to the appellant and has not paid them to the respondent as receiver. We were further advised that the intervenor has been diverting at source the portion of those pension benefits needed to satisfy the appellant's support obligations and has been paying them directly to the respondent. These have not been paid to the respondent as receiver but, rather, under the auspices of the Family Responsibility Office and because of the order of Fedak J. of which the Ontario Pension Board has been made aware. The intervenor advised that on this basis it will continue to divert a portion of the appellant's pension benefits to the respondent to satisfy the appellant's support obligation. The intervenor further advised that the amount which it has withheld and not paid over to the respondent is now in excess of $30,000.
26Third, the parties agreed that there are now essentially no arrears of support owed by the appellant. Indeed, the appellant did not appeal the refusal of Matheson J. to grant any relief from support arrears.
27Fourth, while the parties filed very brief facta on the issue of "double dipping" following the release of Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, 201 D.L.R. (4th) 1 the appellant advanced no oral argument and sought no additional relief on this basis. This is understandable given that the respondent has received only $5,000 of her equalization entitlement. In these circumstances, we need not consider this issue further in this case.
28Finally, in this court, the appellant challenged the dismissal of his application to vary the support order of Fedak J. He argued that Matheson J. erred in finding that his retirement was voluntary. He asserted that it was not, and therefore qualified as a material change in circumstances.
29I disagree with the appellant's submission. There was ample evidence filed on the application to support the conclusion that the appellant's retirement in 1998 was voluntary, not compelled. It was contrary to his professed intention when the consent order for support and equalization was made. The judge below clearly viewed the taking of voluntary early retirement as typical of the deliberately adverse financial treatment which the appellant had accorded to the respondent. Without commenting on the impact of voluntary retirement in other circumstances, I see no error in his conclusion that the appellant's early retirement here does not constitute a material change in circumstances. This ground of appeal therefore fails.
30I turn then to the primary issue in this appeal, that is, whether Matheson J. erred in appointing the respondent as an [page794] equitable receiver to receive the pension benefits payable to the appellant by the Ontario Pension Board, 50 per cent to discharge his equalization obligation and 50 per cent to discharge his support obligation as ordered by Fedak J. on November 22, 1996.
31As I have indicated, that order required the appellant to pay $50,000 by way of equalization of net family property. The order set out the way this sum was to be paid in these terms:
(a) The defendant shall immediately pay to the plaintiff the sum of $5,000.00 cash;
(b) The remaining balance is to be paid at the rate of $400.00 per month commencing at the earlier of either June 1, 1999 or when the said Sean William Hooper is no longer dependant within the meaning of the Family Law Act until the balance is paid;
(c) Should the defendant receive a monetary severance package from his place of employment at the Ministry of Natural Resources, then this sum of money is to be directed to the plaintiff to pay down on the remaining outstanding balance at that time to the extent that there is a balance owing.
32It also provided that the appellant pay spousal support of $1,400 per month with the usual indexing.
33The starting point for the analysis of this issue is the legislation which regulates the appellant's pension. There is both general and specific provincial legislation which does so.
34The statute of general application to every pension plan provided for persons employed in Ontario is the Pension Benefits Act, R.S.O. 1990, c. P.8 (the "Pension Benefits Act"). It binds the Crown and hence applies to the Ontario Public Service Pension Plan from which the appellant draws his pension benefits as a former provincial employee.
35This pension plan is also regulated by specific legislation, namely, the Ontario Public Service Pension Act, supra. Schedule 1 to that Act sets out the terms of the pension plan.
36Both pieces of legislation, the general and the specific, provide constraints on the assignment or surrender of a pension to another and on the execution against a pension by another. These constraints, although not identically worded, are essentially the same. They seek to avoid the pensioner being deprived of the sustenance on retirement that the pension plan was designed to secure. However, both statutes provide certain limited exceptions relating to equalization and support orders made under the Family Law Act.
37In the Public Service Pension Act, the prohibition against assignment is found in s. 27(1) of Schedule 1. Its counterpart is [page795] s. 65(1) of the Pension Benefits Act. Section 27(1) of Schedule 1 reads as follows:
27(1) Every transaction that purports to assign, charge, anticipate, surrender or give as security the interest, or any part thereof, of any person in the Fund or in any pension or other sum payable out of the Fund is void.
38The prohibition against execution is created by s. 27(2) of Schedule 1 to the Public Service Pension Act, which mirrors s. 66(1) of the Pension Benefits Act. Section 27(2) of Schedule 1 is as follows:
27(2) The interest of any person in the Fund or in any pension or other sum payable out of the Fund is exempt from execution, seizure or attachment.
39Both statutes provide a specifically defined exception to the prohibition against execution but only to permit execution in satisfaction of a support order and then only up to a maximum capped at fifty per cent. Section 66(4) is the relevant provision in the Pension Benefits Act. In the Public Service Pension Act it is s. 27(4) of Schedule 1 which is as follows:
27(4) Subsections (1) and (2) do not apply to prevent execution, seizure or attachment in satisfaction of an order for support or maintenance enforceable in Ontario to a maximum of one-half of the interest of any person in the Fund or in any pension or other sum payable out of the Fund.
40A second exception, the scope of which I will discuss in a moment, is found in s. 27(3) of Schedule 1 to the Public Service Pension Act (which once again has a counterpart in the Pension Benefits Act, namely s. 65(3)). Section 27(3) of Schedule 1 reads as follows:
27(3) Subject to section 52 of the Pension Benefits Act, 1987, subsections (1) and (2) do not apply to prevent the operation of any order under the Family Law Act, 1986 or the provisions of a domestic contract, as defined in Part IV of that Act.
41The relevant part of s. 52 (now renumbered as s. 51) of the Pension Benefits Act, which is referred to in s. 27(3), reads as follows:
52(1) A domestic contract as defined in Part IV of the Family Law Act, or an order under Part I of that Act is not effective to require payment of a pension benefit before the earlier of,
(a) the date on which payment of the pension benefit commences; or
(b) the normal retirement date of the relevant member or former member.
(2) A domestic contract or an order mentioned in subsection (1) is not effective to cause a party to the domestic contract or order to become entitled to more than 50 per cent of the pension benefits, calculated in the prescribed [page796] manner, accrued by a member or former member during the period when the party and the member or former member were spouses or same-sex partners.
(3) If payment of a pension or a deferred pension is divided between spouses or same-sex partners by a domestic contract or an order mentioned in subsection (1), the administrator is discharged on making payment in accordance with the domestic contract or order.
42This statutory language is less than a model of clarity. However, in my view, in excepting from the prohibitions against assignment and execution "the operation of" any order under the Family Law Act, s. 27(3) does not except the enforcement by execution of any order for the payment of money made under that Act. Otherwise, there would be no need for the specifically drawn exception found in s. 27(4) permitting execution in satisfaction of support orders to a maximum of 50 per cent. The "operation" of an order referred to in s. 27(3) does not include execution in satisfaction of that order.
43Rather, keeping in mind the wording of s. 52 of the Pension Benefits Act, I think this second exception, so far as it speaks to an equalization order under the Family Law Act, refers to an equalization order that divides the payment of a pension (for example, the kind of order that is referred to in s. 52(3) of the Pension Benefits Act) or that charges an equalization payment against the pension benefits being made to the spouse who is obliged to equalize. In the language of s. 52(2) of the Pension Benefits Act such an order would be effective to cause a party to become entitled to the pension benefits of his or her spouse. Although s. 52(2) caps such an order at 50 per cent, s. 27(3) of Schedule 1 to the Public Service Pension Act excepts it from the two prohibitions in s. 27(1) and (2).
44Thus, in general, this legislation makes pension payments immune from execution and assignment. The only exceptions relate to certain orders made against the pensioner pursuant to the Family Law Act, namely support orders or equalization orders that operate to entitle another to receive the pension benefits. With each of these exceptions, there is a cap. The legislative objective is to assure that, so far as possible, an employee's participation in a pension plan over the years will make available benefits to provide the sustenance he or she needs upon retirement. Even in those exceptional cases where an incursion is permitted on that assurance because of the overriding imperatives of family law, an upper limit is in place to preserve this objective at least to some extent.
45This legislative regime which regulates the appellant's pension clearly affects the respondent's ability to have her [page797] support and equalization orders paid out of the appellant's pension benefits.
46The support order made by Fedak J. can be satisfied by way of execution against the appellant's pension, but only to a maximum of one-half of the amount payable to the appellant.
47However, the equalization order makes no reference to the appellant's pension. It does not divide this pension or order that the equalization payment owing be against the pension. Moreover, the equalization order cannot be satisfied by way of execution against the appellant's pension, since it is not a support order. In short, under the relevant pension legislation, the equalization order of Fedak J. cannot be enforced against the appellant's pension benefits.
48The appointment of the respondent as equitable receiver of the appellant's pension must be analyzed in the context of this legislative regime.
49The court's jurisdiction to appoint an equitable receiver is found in s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43 which authorizes the appointment where it appears to be just or convenient to do so.
50I will deal first with that aspect of the order under appeal which appoints the respondent as equitable receiver to receive one-half of the pension benefits payable to the appellant by the Ontario Pension Board to satisfy the appellant's equalization obligation as ordered by Fedak J.
51As I have indicated, under the legislation governing the appellant's pension, the equalization order simply cannot be enforced against the appellant's pension. The order appointing the respondent as equitable receiver is not an example of the court using its equitable jurisdiction to circumvent a common law obstacle of its own making. Rather, that order would effect a result which, for clear policy reasons, the legislation prohibits, namely the enforcing of the equalization order of Fedak J. against the appellant's pension payments. In my view, however strong the equities might otherwise be, it is not just or convenient in these circumstances to appoint an equitable receiver to achieve a result which is in direct conflict with the applicable legislation. In this, I agree with Rutherford J. in Beattie v. Ladouceur (1995), 23 O.R. (3d) 225, 13 R.F.L. (4th) 435 (Gen. Div.) who came to the same conclusion in the context of similar federal legislation.
52In making this order Matheson J. relied on two cases, Re Simon and Simon (1984), 45 O.R. (2d) 534, 7 D.L.R. (4th) 128 (Div. Ct.) and Nicholas v. Nicholas (1998), 37 R.F.L. (4th) 13 (Ont. Gen. Div.). [page798]
53With respect, in my view, neither case supports the conclusion that an equitable receiver can be appointed to effect a result which directly contravenes the applicable legislation.
54In Simon, the Divisional Court sustained the appointment of an equitable receiver to take in the pensioner's future pension benefits when they became due, to satisfy an outstanding support order against him. It appeared that these benefits were about to be received, that the pensioner might leave the jurisdiction, and that without the order it would be practically very difficult, if not impossible, for the pensioner's spouse to obtain the fruits of her support judgment. Most importantly, however, under the governing legislation which was a predecessor to the present Pension Benefits Act, the pensioner's spouse could fully satisfy her support order from the pension benefits, once they were payable, by way of execution or attachment. Thus, there was no direct conflict between the task of the equitable receiver and the applicable legislation.
55In Nicholas, the order against the pensioner required that he make both his equalization and his support payments from his pension by transferring to his spouse his entire interest in that pension. Thus, apart from requiring payment over of 100 per cent of the pension (an issue I need not address), the use of an equitable receiver to take in the pension benefits to satisfy this order was consistent with the applicable legislation in that the legislation sanctions an equalization order sourced directly from a pension and permits execution in satisfaction of a support order. Here too, the outcome achieved by the equitable receiver was not in direct conflict with the applicable legislation.
56In seeking to uphold this order the respondent relied on two cases not cited by the motions judge, Beattie v. Ladouceur, supra, and Lavigne v. Robern (1986), 56 O.R. (2d) 385, 30 D.L.R. (4th) 756 (H.C.J.). In my view, neither assists the respondent. The reasoning in Beattie parallels the approach I have set out above and reaches the same conclusion. In Lavigne, the appointment of an equitable receiver to take in pension payments to satisfy an outstanding civil judgment did not face legislation barring execution to satisfy that judgment.
57In summary therefore, I conclude that because of the legislative protections accorded to the pension benefits received by the appellant, Matheson J. erred in appointing the respondent as equitable receiver to take in 50 per cent of the appellant's pension benefits in order to satisfy his equalization obligation as ordered by Fedak J. The appointment is not just or convenient because the result is in direct conflict with the applicable legislation.
58Turning to that aspect of the order by which the respondent as equitable receiver is to take in 50 per cent of the appellant's [page799] pension benefits to satisfy his support obligation, we were advised that this result is being achieved without the need for an equitable receiver. The Ontario Pension Board, having been advised of the support order, is simply diverting at source one-half of the appellant's pension benefits to the respondent to satisfy the appellant's support obligation.
59In my view, in these circumstances it is simply unnecessary to resort to the device of an equitable receiver with the attendant additional expense and complexity which that appointment may bring. I would therefore set aside the order of Matheson J. to this effect as not just or convenient in the circumstances. Should these circumstances change, however, so that diversion at source no longer results in satisfaction of the appellant's support obligation, the respondent will be free to renew her application for the appointment of an equitable receiver for this purpose.
60I would also set aside the appointment of the respondent as receiver to apply for and receive all pension benefits that may be available to the appellant under the Canada Pension Plan Act. The appellant has no present legal entitlement to receive federal pension benefits. Any such receipt is contingent upon an application and its approval by the federal authorities. There is nothing now to be received nor about to be received by the appellant which would make the appointment of a receiver for this purpose either just or convenient. See Re Noriega and Noriega (1979), 23 O.R. (2d) 520, 13 C.P.C. 263 (S.C.).
61For these reasons, I would set aside the appointment of the respondent as equitable receiver for the various purposes set out in the order appealed from.
62However I should not leave this subject without offering the following two brief comments by way of obiter.
63First, there was much debate in this court about whether the 50 per cent cap on the execution permitted against pension payments to satisfy support orders could be "stacked" on top of the 50 per cent cap on the enforcement of equalization orders against the same pension payments. Because of my view of the meaning of the relevant legislation, I have not had to address that issue in this case. However, having heard the argument I have real doubt that the legislation contains any constraint on such a "stacking", despite the policy reasons that might favour such a constraint. If the legislature intends that there be no stacking, it should say so clearly.
64Second, at a time when pensions are becoming both an increasingly important part of family property and an increasingly important source of the ability to make equalization payments, it may well be appropriate to revisit the legislative constraints on access to pension benefits to enforce the payment of these orders. [page800] There will undoubtedly be cases where the equities between the parties may be best served by providing this access.
65The final matter to be dealt with on this appeal arises from the finding of contempt against the appellant by Matheson J. for failing to pay over his severance payment to the respondent. The appellant does not challenge that finding in this court. He properly acknowledged that he was wrong not to do so. He further agreed that the $19,640.60 of the funds withheld by the Ontario Pension Board should now be paid to the respondent. The parties all consent, and I agree, that this court should effect this result by ordering that the Ontario Pension Board issue a cheque to the appellant for this sum to be delivered to the respondent's counsel, there to be endorsed by the appellant in favour of the respondent.
66Moreover, the appellant did not appeal the order of Matheson J. that he pay interest on this sum at the rate of 6 per cent per year from September 1, 1998. I presume that the payment of this amount can be effected in the same way as the principal amount. Indeed, I would treat this payment as the appropriate way for the appellant to purge his contempt since he can no longer do so as directed by Matheson J. now that there will be no application made by the respondent as receiver for the appellant's federal pension and therefore no such application in which he can assist. Hence, I would order that the appellant purge his contempt by making this interest payment in the way I have described, failing which he is ordered to make this payment as punishment for his contempt, the same to be paid by a transfer to the respondent of this amount from the money withheld by the Ontario Pension Board.
67In the result, I would allow the appeal and amend the order of Matheson J. in accordance with these reasons. If the parties require assistance in settling the order, they may speak to the court.
68As to costs, I would not alter the costs order made below. The main reason for the respondent's motion was the appellant's misuse of his severance payment in complete disregard of the order of Fedak J. The respondent obtained a finding of contempt which stands unimpaired. Moreover, she successfully resisted the appellant's variation application.
69Nor would I award any costs of the appeal including the motion to quash. Both parties have had some success -- the appellant in setting aside the appointment of an equitable receiver and the respondent in resisting the appeal of the dismissal of the variation application and in finally securing payment to her of the amount of the appellant's severance payment. In these circumstances, each side should bear his or her own costs of the appeal.
Appeal allowed in part.
