COURT OF APPEAL FOR ONTARIO
WEILER, BLAIR and ROULEAU JJ.A.
BETWEEN:
STEVE D. MAPHANGOH
Appellant/Respondent
and
CATHERINE A. MAPHANGOH
Respondent/Applicant
Steve D. Maphangoh in person
Catherine A. Maphangoh in person
Heard: June 11, 2007
On appeal from the order of Justice G. Patrick Smith of the Superior Court of Justice dated December 1, 2005.
1At the conclusion of the hearing we dismissed the appeal with reasons to follow. These are those reasons.
2The appellant appeals the trial judge’s determination that the appellant’s pension was a retirement pension and not a disability pension. As a result, the trial judge included the value of this pension in the equalization of net family property calculations.
3The appellant submits that the pension he is receiving is a disability pension and pursuant to this court’s decision in Lowe v. Lowe (2006), 78 O.R. (3d) 760 (C.A.), it is to be excluded from the equalization of net family property calculations. Alternatively, the appellant argues that the pension should be excluded from the calculation pursuant to s. 4(2)3 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), as the pension constitutes “damages” and is therefore to be excluded from the calculation.
4The appellant further submits that the trial judge ought to have recognized the existence of a debt in the amount of $108,000 U.S. incurred prior to separation. This debt ought to have been included in the equalization of net family property calculations.
5Finally, the appellant argues that the trial judge erred in failing to award him spousal support.
Pension issue
6Both parties appeared without lawyers at trial and at this appeal. As noted by the trial judge, the result was that “the court was given little or no evidence or information on several material items. In particular, the [appellant] failed to call any evidence to explain the nature and details of his ‘disability income’.”
7After a thorough review of the case law and evidence led at trial, the trial judge concluded as follows:
[B]ased upon my review of the relevant legislation and case law and the best evidence that is available to the Court, I find that the income that the [appellant] is receiving has the attributes of a retirement pension and is not a disability pension or disability income and is therefore property within the meaning of the FLA and subject to equalization.
8In my view, the record fully supports the trial judge’s finding. The appellant had almost eighteen years of service with the Federal government when he resigned in 1991. Of these eighteen years, approximately fourteen and a half years were served within the period of the marriage. In 1997, at the age of fifty-six, the appellant became disabled. Under the Federal government pension plan into which he had contributed, the appellant became entitled to a disability pension. This disability pension was, in essence, an entitlement to take early retirement without penalty. But for his disability, the appellant would have had to wait until he was sixty years of age before being entitled to draw an unreduced pension.
9At trial, information from the Superannuation, Pension Transition and Client Services Sector of Public Works and Government and Services Canada was filed. This material describes how the Pension Benefits Division Act, S.C. 1992, C.46 Sch. II provided for the division of the appellant’s pension benefits without affecting his disability pension. The relevant paragraphs from the document read as follows:
It is important to note that the valuation date under the Pension Benefits Division Act (PBDA) is the date of the division payment and only future entitlements are included in the valuation. In addition, only benefits acquired during the period subject to division are included in the valuation. If the PBDA payment had been made in May 1999, the valuation for purposes of the PBDA would be based on the annuity for the period subject to division (14 ½ years) payable from age 60. The maximum permissible payment would be 50% of that value. The benefits payable between the valuation date and age 60 due to disability would be ignored. Similarly, the reduction to the plan member (i.e. ½ of the annuity related to the 14 ½ year period of service) would only apply starting at age 60.
If, on the other hand, the PBDA payment were being made at this time, it would be no different than if the member had retired with an entitlement to a differed annuity payable at age 60. That is because the member is now over the age of 60. As noted above, only future benefits are included in the valuation so the fact that the member had received benefits prior to age 60 would now be irrelevant.
10By the time of trial, the appellant was over sixty years of age. Therefore, although his pension was still called a disability pension, it had in effect become a retirement pension. The amount of this pension was approximately the same amount as he would have received at the age of sixty but for his disability.
11As a result, the value at the date of separation of the pension entitlement acquired by the appellant during the marriage was properly included by the trial judge in the equalization of net family property calculations. The trial judge was careful to include only the value of the pension entitlement at age sixty in the calculation. For purposes of calculation, therefore, the value of the disability benefits that the appellant was entitled to receive up until age sixty were excluded.
12In my view, this case is quite different from the case of Lowe to which we were referred. In that decision, this court found that disability benefits paid by the Workplace Safety and Insurance Board were not family property for purposes of equalization. As noted in that decision, however, disability payments that form part of an employee benefit plan, such as the one in the present case, “may be on a different footing”: see Lowe at paras. 17 and 24.
13In my view, the trial judge adopted the correct approach based on the record before him. My understanding of his order is that the value of the appellant’s disability pension, up to age sixty, was excluded from the equalization of net family property calculation. Only one half of the appellant’s retirement pension entitlement acquired during the course of the marriage was valued and transferred to the respondent. The appellant has been left with the other half of the retirement pension entitlement acquired during the years of the marriage as well as 100% of the entitlement he had earned prior to the marriage.
14I also see no error in the trial judge’s finding that the pension did not constitute “damages” as provided in s. 4(2)3 of the FLA. As I have noted, the trial judge ensured that the disability portion of the pension was excluded from the calculation.
Other issues
15As to the appellant’s claim for spousal support from the respondent, I find no error. The trial judge recognized that in 1997 the appellant became disabled, entitling him to a disability pension. However, as noted by the trial judge, the appellant led virtually no medical evidence of his condition at the date of trial or in the years preceding trial. Therefore, the record simply did not support the appellant’s claim that at the date of trial he continued to be disabled and unable to work. It was open to the trial judge to conclude that the appellant was
attempting to artificially manufacture a medical condition so that he can delay these proceedings or to support his claim for support from the wife.
This conclusion is reinforced by my assessment of the husband during the trial. …
Based upon the above, I have serious questions about the credibility of the husband and his veracity. Accordingly, I find that he is purposively unemployed and dismiss his claim for spousal maintenance.
On this record I see no reason to interfere with that finding.
16With respect to the appellant’s submission that the respondent should be responsible for one half of the alleged $108,000 U.S. debt, the record does not establish the existence of such a debt. I find no basis to vary the order in this regard.
17As a result, I would dismiss the appeal and award the respondent her disbursements set at $2,888.96.
“Paul Rouleau J.A.”
“I agree K.M. Weiler J.A.”
“I agree R.A. Blair J.A.”