Carrigan v. Carrigan Estate

Citation: 112 O.R. (3d) 161; 2012 ONCA 736 Court: Court of Appeal for Ontario Judges: Juriansz, LaForme and Epstein JJ.A. Date: October 31, 2012

Pensions -- Death benefit -- "Spouse" -- Member of pension plan was survived by common law spouse with whom he resided at time of death and legally married spouse from whom he was separated -- Member having designated legally married spouse as beneficiary of his pension plan -- Legally married spouse entitled to death benefit as beneficiary under s. 48(6) of Pension Benefits Act -- Pension Benefits Act, R.S.O. 1990, c. P.8, s. 48.

At the time of his death, the deceased was legally married to the plaintiff but was living with the defendant. He had designated the plaintiff and their daughters as the beneficiaries of the death benefit in his pension plan. The plaintiff brought an application for a declaration that she was entitled to the deceased's pre-retirement death benefit under s. 48 of the Pension Benefits Act ("PBA"). The trial judge found that both the plaintiff and the defendant fell within the definition of "spouse" in s. 1 of the PBA but that only one spouse can be entitled to a member's death benefit under s. 48(1) of the PBA, which gives the "spouse" priority over the designated beneficiary. She interpreted s. 48(3) of the PBA as requiring that a spouse be living with the member in order to be entitled to the death benefit. She found as a fact that the deceased and the plaintiff were living separate and apart at the time of death and concluded that the plaintiff was not eligible to receive the death benefit. She held that the defendant was entitled to receive the death benefit because she was a spouse and was living with the deceased at the time of his death. The plaintiff appealed.

Held, the appeal should be allowed.

Per Juriansz J.A.: It was unnecessary to decide whether or not the plaintiff and the defendant both fell within the definition of "spouse", as the result was the same in either case. Assuming that both parties qualified as the deceased's spouse for the purposes of s. 48 of the PBA, s. 48(1) of the PBA was rendered inapplicable by s. 48(3) as the plaintiff was living separate and apart from the deceased at the time of his death. The word "spouse" in s. 48(3) must always refer to the legally married spouse. Under the PBA, it makes no sense to conceive of a common law spouse living separate and apart from the member. When s. 48(1) does not apply, there is no provision that the "spouse" of the member is entitled to the death benefit. As there is no spousal entitlement, the member's designated beneficiary is entitled to the death benefit under s. 48(6) of the PBA. Section 48(6) provides that the designated beneficiary is entitled to the death benefit if either of two circumstances exists. Either the member does not have a spouse on the date of death or the member is living separate and apart from his or her spouse on that date. The deceased and the plaintiff were living separate and apart on the date of his death. Therefore, s. 48(6) was triggered and the designated beneficiaries were entitled to the death benefit. If the legally married spouse is the only "spouse" for the purposes of s. 48 of the PBA and s. 48(1) referred only to the plaintiff, s. 48(3) still applied and made s. 48(1) inapplicable as the plaintiff and the deceased were living separate and apart at his death. The application of s. 48(6) was triggered, with the result that the [page162] plaintiff and her two daughters were entitled to the death benefit as the deceased's designated beneficiaries.

Per Epstein J.A. (concurring): The wording of s. 1 of the Pension Benefits Act and structure of s. 48 make it clear that the legislation can only be interpreted as applying to one spousal relationship at any point in time. As the plaintiff was living separate and apart from the deceased at the time of his death, s. 48(3) of the PBA eliminated the application of the spousal priority set out in s. 48(1) and triggered the beneficiary designation under s. 48(6).

Per LaForme J.A. (dissenting): The definition of "spouse" in the Pension Benefits Act includes both legally married and common law spouses. Both the plaintiff and the defendant were spouses for the purpose of the Act. It is a basic principle of statutory interpretation that the same words should be given a consistent meaning throughout a statute. To read "spouse" as having only one meaning in s. 48(3) -- that of a married spouse -- would be to give "spouse" a different and more restrictive meaning under s. 48(3) than under s. 1. Applying s. 48(3) on the facts of this case, the plaintiff was not entitled to benefits under s. 48(1). While she qualified as a spouse on the date of death, she was living separate and apart from the deceased on the relevant date. Accordingly, s. 48(1) did not apply to her. The defendant was also a spouse on the date of death, and she was not living separate and apart from the deceased. Accordingly, she was not disqualified from receiving the death benefit by virtue of s. 48(3).

APPEAL by the plaintiff from the judgment of Nolan J., [2011] O.J. No. 559, 2011 ONSC 585 (S.C.J.) dismissing the action for a declaration that she was entitled to the death benefit.

Cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, 2004 SCC 54, 242 D.L.R. (4th) 193, 324 N.R. 259, J.E. 2004-1546, 189 O.A.C. 201, 17 Admin. L.R. (4th) 1, 45 B.L.R. (3d) 161, 41 C.C.P.B. 106, 132 A.C.W.S. (3d) 579; R. v. Zeolkowski, [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, 61 D.L.R. (4th) 725, 95 N.R. 149, [1989] 4 W.W.R. 385, J.E. 89-827, 58 Man. R. (2d) 63, 50 C.C.C. (3d) 566, 69 C.R. (3d) 281, 8 W.C.B. (2d) 459

Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, s. 1(1) [as am.], (a), (b), Part III [as am.], s. 29 [as am.] Pension Benefits Act, R.S.O. 1990, c. P.8, ss. 1 [as am.], 48 [as am.], (1) [as am.], (3) [as am.], (4) [as am.], (6) [as am.], (b) [as am.], (7) [as am.], (b) [as am.], (13), (14) [as am.]

Authorities referred to Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008)

Rodney Godard and Daniel Ableser, for appellant. R.G. Colautti and Kathleen Montello, for respondent Jennifer Quinn. [page163]

JURIANSZ J.A.: --

A. Introduction

[1] This appeal concerns a pure question of law: who receives the pension death benefit when the member of a pension plan entitled to a deferred pension dies and is survived by both a common law spouse [See Note 1 below] with whom he resided at the time of death and a legally married spouse from whom he was separated but whom he designated a beneficiary of his pension plan? The outcome turns on a proper interpretation of s. 48 of the Pension Benefits Act, R.S.O. 1990, c. P.8 ("PBA"), which addresses who is entitled to a pension plan member's pre-retirement death benefit.

[2] The trial judge dismissed the action of the legally married spouse for a declaration that she was entitled to her husband's pre-retirement death benefit under s. 48 of the PBA. The trial judge found that the common law spouse was entitled to the death benefit. The trial judge also dismissed the legally married spouse's unjust enrichment and constructive trust claims.

[3] I would allow the appeal and issue a declaration that the legally married spouse and her two daughters are entitled to the member's pre-retirement death benefit as his designated beneficiaries under s. 48(6) of the PBA.

B. Facts

[4] The appellant, Melodee Carrigan, married Ronald Carrigan in 1973. The pair remained legally married until his unexpected death on June 4, 2008, at the age of 57. His will, made in 1986, named her as his estate trustee as well as the sole beneficiary of the residue of his estate, after two bequests to their two daughters. In 2002, Mr. Carrigan designated Mrs. Carrigan and their daughters as the beneficiaries of the death benefit in his pension plan.

[5] The trial judge found that the Carrigans probably separated in 1996, and that they were definitely separated by January 2000, by which time Mr. Carrigan was living openly with the respondent Jennifer Quinn. Mr. Carrigan continued to live with Ms. Quinn until his death. Mrs. Carrigan remained living in the matrimonial home. All of her living expenses were paid by [page164] Mr. Carrigan until the day he died. The Carrigans never formalized their separation by a separation agreement or a court order.

[6] Mrs. Carrigan and Ms. Quinn both claim the death benefit of Mr. Carrigan's pension under s. 48 of the PBA.

[7] Section 48, at the relevant time, provided:

Pre-retirement death benefit

48(1) If a member or former member of a pension plan who is entitled under the pension plan to a deferred pension described in section 37 (entitlement to deferred pension) dies before commencement of payment of the deferred pension, the person who is the spouse of the member or former member on the date of death is entitled, (a) to receive a lump sum payment equal to the commuted value of the deferred pension; or (b) to an immediate or deferred pension the commuted value of which is at least equal to the commuted value of the deferred pension.

Idem

(2) If a member of a pension plan continues in employment after the normal retirement date under the pension plan and dies before commencement of payment of pension benefits referred to in section 37, the person who is the spouse of the member or former member on the date of death is entitled, (a) to receive a lump sum payment equal to the commuted value of the pension benefit; or (b) to an immediate or deferred pension the commuted value of which is at least equal to the commuted value of the pension benefit.

Application of subs. (1, 2)

(3) Subsections (1) and (2) do not apply where the member or former member and his or her spouse are living separate and apart on the date of the death of the member or former member. . . . . .

Designated beneficiary

(6) A member or former member of a pension plan may designate a beneficiary and the beneficiary is entitled to be paid an amount equal to the commuted value of the deferred pension mentioned in subsection (1) or (2) if, (a) the member or former member does not have a spouse on the date of death; or (b) the member or former member is living separate and apart from his or her spouse on that date.

Estate entitlement

(7) The personal representative of the member or former member is entitled to receive payment of the commuted value mentioned in subsection (1) or (2) as the property of the member or former member, if the member or former member has not designated a beneficiary under subsection (6) and, [page165] (a) does not have a spouse on the date of the member or former member's death; or (b) is living separate and apart from his or her spouse on that date.

[8] The statutory definition of "spouse" is central to the determination of the competing claims in this case. Section 1 of the PBA provides:

"spouse" means, except where otherwise indicated in this Act, either of two persons who, (a) are married to each other, or (b) are not married to each other and are living together in a conjugal relationship, (i) continuously for a period of not less than three years, or (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child, both as defined in the Family Law Act[.]

C. Decision of the Trial Judge

[9] The trial judge was called upon to determine a number of factual disputes between the parties. Mrs. Carrigan argued that she and Mr. Carrigan never separated, leading evidence of his frequent presence at the family home and his continued participation in family events. In the alternative, she contested the date of separation advocated by Ms. Quinn. The trial judge had to resolve these factual issues because Mrs. Carrigan's primary position at trial was that she was entitled to Mr. Carrigan's death benefit as his "spouse" under s. 48(1).

[10] The trial judge found that at the time of Mr. Carrigan's death the statutory definition of "spouse" applied to both Mrs. Carrigan and Ms. Quinn. She reasoned that Mrs. Carrigan is a "spouse" because she was legally married to Mr. Carrigan, and that Ms. Quinn is a "spouse" because she was living with Mr. Carrigan in a conjugal relationship and she had done so continuously for more than three years prior to his death.

[11] The trial judge noted that s. 48(1) refers to "the spouse" and concluded there could only be one spouse entitled to a member's death benefit. Therefore, the benefit could not be split between the two women, who both qualified as a spouse of Mr. Carrigan.

[12] The trial judge resolved the conundrum this presented by focusing on s. 48(3) of the PBA. She understood s. 48(3) to require that a spouse be living with the member in order to be entitled to the death benefit. She found as a fact that Mr. and Mrs. Carrigan were living separate and apart at the time of [page166] death and that therefore Mrs. Carrigan was not eligible to receive the death benefit. The trial judge went on to hold that Ms. Quinn was entitled to receive the death benefit because she was a spouse and was living with Mr. Carrigan at his death.

[13] The trial judge rejected the other argument made by counsel for Mrs. Carrigan, namely, that Mr. Carrigan's designation of Mrs. Carrigan and their two daughters as the pension beneficiaries should mean that Mrs. Carrigan and her daughters were entitled to receive the benefit under s. 48(6). The trial judge read s. 48(6) to apply only when there is "no eligible spouse", and since Ms. Quinn counts as a spouse in this circumstance, the designation under s. 48(6) is irrelevant.

[14] The trial judge reasoned, at para. 52:

The member who dies before being entitled to payment of his pension can only have one spouse on the day he died, "the spouse," and the entitlement to receive the death benefit as a spouse can only be reasonably interpreted to be the person who meets one of the requirements in the s. 1 definition of spouse as well as the requirement found in s. 48(3) that the spouse and the member cannot be living separate and apart on the day of the member's death. There is, therefore, only one person who meets the requirements of both s. 1 and s. 48 of the Pension Benefits Act as well as the definition of "spouse" in the pension plan itself: that is Ms. Quinn.

[15] The trial judge also rejected Mrs. Carrigan's claims that she should be able to recover the death benefit under a resulting or constructive trust or unjust enrichment theory.

D. Analysis

[16] On appeal, the primary matter contested is the trial judge's conclusion that Ms. Quinn was entitled to the death benefit as "the spouse" under s. 48(1) of the PBA, rather than Mrs. Carrigan and her daughters as the designated beneficiaries under s. 48(6).

[17] This appeal is entirely an exercise in statutory interpretation that begins with the statutory definition of "spouse". The definition opens by stating that a "spouse" is "either of two persons" who are married to each other, or who are not married to each other but satisfy other criteria. The two persons referred to are the pension member and the person with whom the member is in a spousal relationship. The word "either" in the definition should not be misread to refer to a legally married spouse on the one hand and a common law spouse on the other. The PBA definition of spouse is unlike the definition of spouse in s. 29 of Part III of the Family Law Act, R.S.O. 1990, c. F.3, which includes a common law spouse "in addition" to a "spouse" as defined in s. 1(1) of the Family Law Act. [page167]

[18] The appellant argues that the definition implies that if a member has a legally married spouse, he or she cannot have a common law spouse. According to the definition, "spouse" means either of "two persons". Since one of the "two persons" is the pension member, only one other person can be a member's spouse. Once two persons satisfy para. (a) of the definition because they are legally married to each other, there is no need to consider whether the two persons can qualify as spouses without being married. The appellant reads the definition to say that "spouse" means either of two persons who are married to each other or, if not legally married, are living together in a conjugal relationship. Reading the definition in this way, the appellant argues that only Mrs. Carrigan qualifies as a "spouse" for the purposes of the PBA, and that Ms. Quinn is not Mr. Carrigan's spouse under the PBA. Therefore, Ms. Quinn should not receive the death benefit as Mr. Carrigan's spouse, under s. 48(1).

[19] The respondent argues that the definition should be read as the trial judge did -- that the wording captures both legal and common law spouses. For the purposes of the PBA, multiple persons can qualify as the member's spouse, and a legally married spouse does not take precedence over a common law spouse. In this case, both Mrs. Carrigan and Ms. Quinn qualify as a spouse of Mr. Carrigan. Under this interpretation, the respondent argues that the PBA would award the death benefit to whichever spouse was cohabitating with the pension member at death. The respondent submits that s. 48(3) makes this clear, disentitling a spouse living separate and apart from the member on the date of the member's death from taking the death benefit.

[20] Both these competing conceptions of the statutory definition pose difficulties. On one hand, if both Mrs. Carrigan and Ms. Quinn are considered to be Mr. Carrigan's spouses, there would be three spouses (including Mr. Carrigan) and the definition stipulates that a spouse is "either of two persons". On the other hand, the statutory definition does not indicate that the legal relationship described in para. (a) takes priority over the common law relationship described in para. (b).

[21] Fortunately, it is not necessary to resolve the parties' competing conceptions of the statutory definition in order to apply s. 48 in this case. Both conceptions lead to the same result. I proceed to conduct the analysis on the basis of each party's position in turn.

[22] I first assume that the trial judge and the respondent are correct that both Mrs. Carrigan and Ms. Quinn qualify as Mr. Carrigan's spouse for the purposes of s. 48 of the PBA. [page168]

[23] On this assumption, I turn to s. 48. Section 48 regulates what happens when the member or former member of a pension plan dies before commencement of payment of a deferred pension. The purpose of s. 48 is to require that a benefit at least equal to the commuted value of the deferred pension be paid to the member's spouse, to the member's designated beneficiary or to the member's estate representative.

[24] Section 48(1) gives statutory priority to the member's spouse. When s. 48(1) is engaged, it applies even if the member has designated a beneficiary as envisaged by s. 48(6) or dies intestate as envisaged by s. 48(7). Given the assumption that both Mrs. Carrigan and Ms. Quinn are spouses, we encounter difficulty in applying s. 48(1): while the statutory priority is in favour of "the spouse of the member", here the member has two spouses.

[25] The canons of statutory interpretation require that the statutory provision being interpreted be considered in the context of the statute as a whole. Considering s. 48(1) in context, it is readily apparent that it does not apply in all circumstances. Section 48(3) defines a situation in which s. 48(1) does not apply. It states that "[s]ubsection (1) . . . [does] not apply where the member or former member and his or her spouse are living separate and apart on the date of the death of the member or former member". In other words, when the member and his or her spouse are living separate and apart when the member dies, s. 48(1) does not apply, and therefore there is no statutory direction that the death benefit be paid to the member's spouse.

[26] The trial judge regarded s. 48(3) as imposing a "requirement" that "the spouse and the member cannot be living separate and apart on the day of the member's death" in order for a spouse to receive the death benefit. She made much of the fact that Ms. Quinn was living with Mr. Carrigan at the date of his death. Thus, she was convinced that Ms. Quinn satisfied s. 48(3)'s "requirement". However, on its face, s. 48(3) does not impose a requirement; rather, it sets out a circumstance that makes s. 48(1) inapplicable. The trial judge erred by applying s. 48(1) when the circumstance contemplated by s. 48(3) existed.

[27] The circumstance contemplated by s. 48(3) existed because Mr. Carrigan and Mrs. Carrigan were living separate and apart at the time of his death. Given the assumption on this leg of the analysis that the word "spouse" in s. 48(3) may mean "either" Ms. Quinn or Mrs. Carrigan, it is enough that Mrs. Carrigan satisfies the circumstance in s. 48(3). Mrs. Carrigan triggers the application of s. 48(3) as she, a spouse, was living separate and apart from Mr. Carrigan on the date of his death. [page169]

[28] In fact, it is apparent that the word "spouse" in s. 48(3) must always refer to the legally married spouse. Under the PBA, it makes no sense to conceive of a common law spouse living separate and apart from the member. While a person may be a common law spouse in other contexts, only a legally married spouse can live separate and apart from the member and still be a "spouse" under the PBA. That is because para. (b) of the statutory definition applies to two persons not legally married who "are living in a conjugal relationship". The circumstance contemplated by s. 48(3) -- that the member and his or her spouse are living separate and apart on the date of the death -- can only be satisfied by the legally married spouse.

[29] To make this clearer, consider a hypothetical statute that has a dual definition of the term "person" that provides that a "person" means "either" a man or a woman. However, if the term "pregnant person" is employed in a particular provision of the statute, that particular provision could only refer to a "woman" even though "person" could mean either a man or a woman in other provisions. The particular provision would have to be interpreted and applied to mean a "woman". In the same way, the term "spouse living separate and apart from the member" must necessarily connote the legally married spouse of the member. In the context of the PBA, it is not possible for a common law spouse to be living separate and apart from the member any more than a man can be pregnant.

[30] Consequently, even if one assumes the definition of "spouse" encompasses both Mrs. Carrigan and Ms. Quinn, only Ms. Carrigan could be the "spouse" referred to in s. 48(3). Since the circumstance contemplated by s. 48(3) exists, s. 48(1) is rendered inapplicable. Since s. 48(1) is inapplicable, the difficulty in applying the spousal priority falls away. When s. 48(1) does not apply, there is no provision that the "spouse" of the member is entitled to the death benefit. As there is no spousal entitlement, the member's designated beneficiary is entitled to the death benefit under s. 48(6) of the PBA.

[31] Section 48(6) provides that the designated beneficiary is entitled to the death benefit if either of two circumstances exists. Either the member does not have a spouse on the date of death, or the member is living separate and apart from his or her spouse on that day. The structure of s. 48(6) indicates that the existence of either circumstance triggers the application of the subsection. The same reasoning employed in regard to s. 48(3) applies to the second circumstance in s. 48(6). Mr. and Mrs. Carrigan were living separate and apart on the date of his death. The second circumstance in s. 48(6) exists and the [page170] application of the section is triggered. Therefore, s. 48(6) is triggered and the designated beneficiaries are entitled to Mr. Carrigan's death benefit.

[32] The result is that neither Mrs. Carrigan nor Ms. Quinn is entitled to the pension benefit as a spouse. Rather, Mrs. Carrigan and her two daughters are entitled to Mr. Carrigan's death benefit as his designated beneficiaries.

[33] I next analyze the situation by assuming the appellant is correct about the interpretation of the statutory definition and the legally married spouse is the sole spouse. In that scenario, s. 48(1) refers to Mrs. Carrigan. However, s. 48(3) still applies as Mr. and Mrs. Carrigan were living separate and apart at his death. Section 48(3) makes s. 48(1) inapplicable. As well, the second circumstance in s. 48(6) exists, the application of s. 48(6) is triggered, and the result is that Mrs. Carrigan and her two daughters are entitled to Mr. Carrigan's death benefit as his designated beneficiaries.

[34] Therefore, under both the appellant's and the respondent's understanding of the statutory definition, the statute provides that Mrs. Carrigan and her two daughters are entitled to the death benefit as the designated beneficiaries under s. 48(6).

[35] In light of this conclusion, it is not necessary to deal with Mrs. Carrigan's other claims.

[36] I have had the opportunity to consider the reasons of my colleague LaForme J.A., but, with respect, I do not find them persuasive. Had the drafters desired the result my colleague reaches with his interpretation, they could simply have included the words "and living with" in s. 48(1) and dispensed with s. 48(3) entirely. That is, s. 48(1) could have been easily drafted to read:

If a member . . . dies before commencement of payment of the deferred pension, the person who is the spouse of and living with the member . . . on the date of death is entitled to . . . [the death benefit].

[37] Instead, the drafters deliberately chose to include a separate provision at s. 48(3), which makes s. 48(1) entirely inapplicable.

[38] It seems to me that the analysis he suggests reads s. 48(3) as if it provides that s. 48(1) does not apply "to the spouse to who s. 48(3) applies". I, on the other hand, read the words of s. 48(3) to provide that when it applies, s. 48(1) does not apply. I see no words in s. 48(3) to indicate that s. 48(1) does not apply only to the spouse that triggers s. 48(3), leaving room for it to apply to another spouse. My earlier observation that the word "spouse" in s. 48(3) must always refer to a legally married spouse -- an observation I consider indisputable -- is not a [page171] necessary component of my analysis. It matters not that Ms. Quinn does not trigger the application of s. 48(3), when Mrs. Carrigan does.

[39] Moreover, I see no particular policy rationale for interpreting the PBA to provide unequivocally that in all circumstances where there is a legally married spouse and a common law spouse, the common law spouse is entitled to the member's death benefit. Given the diversity of possible relationships, it is more desirable to interpret the statute to allow pension members the freedom to order their affairs in a way that suits their particular circumstances.

[40] As I read it, the PBA does not presume that property division following marriage breakdown is completed until divorce. A member with a legally married spouse, but living apart from that spouse, may arrange his or her own affairs by designating a beneficiary to receive the pension under s. 48(6).

[41] In this case, Mr. Carrigan never advised the pension plan that he was living with Ms. Quinn. He designated his wife and daughters as beneficiaries of his pension some years after he started to live with Ms. Quinn. In my view, the structure of the PBA left it to him to decide how his pension, the value of which he accumulated over his entire working career, was to be distributed.

E. Conclusion

[42] For these reasons, I would allow the appeal, set aside the judgment of the trial judge and replace it with a declaration that Mrs. Carrigan and the daughters of Mr. Carrigan are entitled to his pension death benefit, pursuant to s. 48(6) of the PBA.

[43] I would fix the appellant's costs of the appeal in the amount of $20,000, inclusive of disbursements and HST.

[44] I would set aside the trial judge's disposition of the costs of the trial. If they are unable to agree, I would leave it to the parties to make written submissions regarding the costs of the trial on a schedule set by the court's senior legal counsel.

LAFORME J.A. (dissenting): --

Introduction

[45] When Mr. Carrigan died suddenly in 2008, he was living in a common law relationship with Ms. Quinn. He had separated from, but remained legally married to, Mrs. Carrigan. At issue in this case is the interpretation of s. 48 of the Pension Benefits Act, R.S.O. 1990, c. P.8 ("PBA"), which deals with entitlement to death benefits, and the definition of "spouse" in s. 1 of the PBA. [page172]

[46] Mr. Carrigan married Mrs. Carrigan in 1973 and they had two daughters. She was named in Mr. Carrigan's will in 1986 as the estate trustee as well as the sole beneficiary of the residue of his estate after two small bequests to his daughters. She remained living in the jointly owned matrimonial home and all of whose expenses were paid by Mr. Carrigan up to the day he died.

[47] Ms. Quinn met Mr. Carrigan in 1996 and they began living in a conjugal relationship no later than January 2000. They lived together in a condominium jointly owned by Mr. Carrigan and Mrs. Carrigan as joint tenants. Ms. Quinn and Mr. Carrigan were living together on the day he died.

[48] The trial judge dismissed Mrs. Carrigan's action for a declaration that she was entitled to Mr. Carrigan's pre-retirement death benefits. She held that under s. 48 of the PBA, it is Ms. Quinn who is entitled to the benefit. The trial judge also dismissed Mrs. Carrigan's unjust enrichment and constructive trust claims.

[49] I have read my colleague's reasons and must respectfully disagree with certain aspects of his analysis and his final conclusion. In particular, I disagree with my colleague that Mrs. Carrigan, because she is a married spouse, triggers the application of s. 48(3) such that Ms. Quinn is denied a death benefit under s. 48(1) and the benefit goes to Mrs. Carrigan and her two daughters as designated beneficiaries.

[50] Before commenting on some of my colleague's decision, I propose to briefly review the decision below and explain my reasons for agreeing with the trial judge's conclusion that Ms. Quinn is entitled to the s. 48(1) death benefit.

The Trial Judge's Analysis

[51] The trial judge rejected the interpretation of s. 48 put forward by Mrs. Carrigan, at para. 52 of her reasons [[2011] O.J. No. 559, 2011 ONSC 585 (S.C.J.)]:

The wording of the s. 1 definition of "spouse" captures both Mrs. Carrigan and Ms. Quinn. Section 48(1) and (3) are clear and unambiguous in their language. The member who dies before being entitled to payment of his pension can only have one spouse on the day he died, "the spouse," and the entitlement to receive the death benefit as a spouse can only be reasonably interpreted to be the person who meets one of the requirements in the s. 1 definition of spouse as well as the requirement found in s. 48(3) that the spouse and the member cannot be living separate and apart on the day of the member's death. There is, therefore, only one person who meets the requirements of both s. 1 and s. 48 of the Pension Benefits Act as well as the definition of "spouse" in the pension plan itself: that is Ms. Quinn. [page173]

Analysis

[52] The Supreme Court of Canada has endorsed the following modern approach to statutory interpretation in a number of cases, including Bell Expressvu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[53] The Supreme Court described the overall purpose of the PBA in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, at para. 38:

The Act is public policy legislation that recognizes the vital importance of long-term income security. As a legislative intervention in the administration of voluntary pension plans, its purpose is to establish minimum standards and regulatory supervision in order to protect and safeguard the pension benefits and rights of members, former members and others entitled to receive benefits under private pension plans[.] (Emphasis added)

[54] Section 48 stipulates what happens when a current, former or retired member of a pension plan dies before commencement of payment of a deferred pension. It requires that a benefit at least equal to the commuted value of the deferred pension be paid to the member's spouse, to the member's designated beneficiary or to the member's estate representative.

[55] In effect, s. 48 sets out a priority scheme for determining who is entitled to the death benefit. Section 48(1) gives statutory priority to the member's spouse at the date of death, provided the spouse has not waived his or her entitlement to the death benefit and is not otherwise disentitled to the benefit by virtue of s. 48(3), which I will discuss more below.

[56] While the term spouse may have different meanings in different contexts, s. 1 of the PBA defines "spouse" as follows:

"spouse" means, except where otherwise indicated in this Act, either of two persons who, (a) are married to each other, or (b) are not married to each other and are living together in a conjugal relationship, (i) continuously for a period of not less than three years, or (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child, both as defined in the Family Law Act[.] [page174]

[57] This definition is important for purposes of the PBA because spouses of current, former and retired pension plan members are entitled to certain benefits under the Act. Thus, in assessing entitlements in a particular case, it is important to determine whether the person in question has a spouse.

[58] The s. 1 definition of "spouse" includes two types of spouses: those who are married and those who are in common law relationships. The definition does not give married spouses priority over common law spouses.

[59] On a plain reading of the two-pronged definition, there is nothing that precludes a member from being in a spousal relationship with more than one person at a time.

[60] The definition, which uses the phrase "either of two persons", makes clear that one must look at the relationship between the two persons in question to determine whether the definition of spouse is met. It does not, in my view, preclude the possibility that a person may be a spouse in relation to two different persons.

[61] For instance, in this case, Mrs. Carrigan is a spouse in relation to Mr. Carrigan, as she is one of two persons who are married to one another. Ms. Quinn is also a spouse in relation to Mr. Carrigan and she is one of two persons who lived together continuously in a conjugal relationship for more than three years.

[62] While it is legally impossible to be married to two different people at the same time, I do not see anything in the PBA to suggest that a person cannot have a married spouse and a common law spouse at the same time. Also, since I imagine situations like the one in this case are not uncommon, I would expect that the drafters of the PBA turned their mind to its possibility and drafted accordingly.

[63] Accepting that both Mrs. Carrigan and Ms. Quinn are spouses for the purpose of the Act, the question is how s. 48 applies.

[64] Section 48(1) provides:

48(1) If a member who is entitled under the pension plan to a deferred pension described in section 37 dies before payment of the first instalment is due, or if a former member or retired member dies before payment of the first instalment of his or her deferred pension or pension is due, the person who is his or her spouse on the date of death is entitled, (a) to receive a lump sum payment equal to the commuted value of the deferred pension; (b) to require the administrator to pay an amount equal to the commuted value of the deferred pension into a registered retirement savings arrangement; or [page175] (c) to receive an immediate or deferred pension, the commuted value of which is at least equal to the commuted value of the deferred pension. (Emphasis added)

[65] While s. 48(1) could have provided that a married spouse takes priority over a common law spouse in the event that there are both kinds of spouse, the section does not do that. Rather, it refers to the person who is the member's spouse on the date of death.

[66] However, not every spouse is entitled to death benefits. Section 48(3) specifies that the spouse must not be living separate and apart on the date of death for s. 48(1) to apply:

48(3) Subsections (1) and (2) do not apply where the member, former member or retired member and his or her spouse are living separate and apart on the date of death.

[67] Section 48(6) and s. 48(7) reiterate that a member's spouse, if any, will have priority to receive the death benefit under s. 48(1), provided that the spouse is not living separate and apart from the member on the date of the member's death:

48(6) A member, former member or retired member described in subsection (1) may designate a beneficiary and the beneficiary is entitled to be paid an amount equal to the commuted value of the deferred pension mentioned in subsection (1) or (2), (a) if the member, former member or retired member does not have a spouse on the date of death; or (b) if the member, former member or retired member is living separate and apart from his or her spouse on the date of death.

(7) The personal representative of a member, former member or retired member described in subsection (1) is entitled to receive payment of the commuted value mentioned in subsection (1) or (2) as the property of the member, former member or retired member if he or she has not designated a beneficiary under subsection (6) and, (a) does not have a spouse on the date of death; or (b) is living separate and apart from his or her spouse on the date of death. (Emphasis added)

[68] It is a basic principle of statutory interpretation that the same words should be given a consistent meaning throughout a statute: R. v. Zeolkowski, [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at p. 1387 S.C.R.; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 215-16.

[69] As noted above, "spouse" can have one of two meanings under the PBA: either a married or a common law spouse. To [page176] read it as having only one meaning in s. 48(3) -- that of a married spouse -- would be to give "spouse" a different and more restrictive meaning under s. 48(3) than under s. 1.

[70] Applying s. 48(3) on the facts of this case, Mrs. Carrigan is not entitled to benefits under s. 48(1). While she qualified as a spouse on the date of death, she was living separate and apart from Mr. Carrigan on the relevant date. Accordingly, s. 48(1) does not apply with regard to Mrs. Carrigan.

[71] Ms. Quinn was also a spouse on the date of death, since she had been living with Mr. Carrigan continuously for a period of not less than three years. And, on the date of death, she was not living separate and apart from Mr. Carrigan. Accordingly, she is not disqualified from receiving the death benefit by virtue of s. 48(3).

[72] This result is consistent with the evident purpose of s. 48, which is to provide a priority scheme for death benefits -- a priority scheme that gives priority to spouses, as broadly defined under the PBA, who are not living separate and apart on the date of death, unless the spouse has made a choice to waive the death benefit.

[73] This result is also consistent with the wording of s. 48(6). Section 48(6) provides that a designated beneficiary is entitled to the death benefit only if the member has no spouse on the date of death or if the member is living separate and apart from his or her spouse on the relevant date. To conclude that Mrs. Carrigan and her daughters are entitled to the death benefit is at odds with s. 48(6), since Mr. Carrigan did have a spouse on the date of death -- Ms. Quinn -- and Ms. Quinn was not living separate and apart from him.

Comments Concerning My Colleague's Interpretation

[74] While I agree with a number of aspects of my colleague's analysis, it is evident that my analysis differs from his in a number of respects.

[75] First, I am prepared to conclude that, for purposes of the PBA, it is possible for a person to have two spouses at the same time.

[76] Second, my colleague takes issue with the trial judge's comment that s. 48(3) imposes a "requirement" that "the spouse and the member cannot be living separate and apart on the day of the member's death" in order for a spouse to receive the death benefit. In my colleague's view, s. 48(3) sets out a circumstance -- not a requirement -- that makes s. 48(1) inapplicable, and so the trial judge was in error. [page177]

[77] I disagree. Whether s. 48(3) is described as "imposing a requirement" or "it sets a circumstance that makes s. 48(1) inapplicable", it amounts to the same thing. In my respectful view, nothing turns on the distinction. For a spouse to be entitled to receive a benefit under s. 48(1), he or she cannot be living separate and apart from the member on the date of death. In this case, Mrs. Carrigan was while Ms. Quinn was not.

[78] Third, my colleague appears to conclude that because Mrs. Carrigan "triggers" the non-application of s. 48(1), the non-application is in connection with any spouse, including Ms. Quinn. My colleague's conclusion that s. 48(1) does not apply since Mrs. Carrigan engages s. 48(3) appears to flow from his observation, at para. 28, that "it is apparent that the word 'spouse' in s. 48(3) must always refer to the legally married spouse".

[79] As I have explained, to read "spouse" to mean only a married spouse in the context of s. 48(3) is to give the same term a different meaning throughout the PBA.

[80] Accordingly, as I read s. 48(3), it provides that a spouse -- either married or common law -- will not be entitled to the s. 48(1) death benefit if he or she lived separate and apart from the member on the member's date of death. In other words, while married and common law spouses may, in other legal contexts, continue to have certain legal rights even if they are living separate and apart -- for instance, the right to support under the Family Law Act, R.S.O. 1990, c. F.3 -- s. 48 makes it clear that living separate and apart on the date of death precludes a spouse from receiving a death benefit under s. 48(1).

[81] Even if one accepts that s. 48(3) never applies to common law spouses, it is difficult to see how s. 48(3) then disqualifies a common law spouse from receiving the benefit under s. 48(1).

[82] For these reasons, I disagree that the term "spouse" in s. 48(3) will "always mean the legally married spouse" such that if there is a married spouse, and the married spouse is living separate and apart on the date of death, a common law spouse will not be entitled to the death benefit under s. 48(1). Accordingly, I would dismiss the appellant's s. 48 ground of appeal.

Other Grounds

[83] Mrs. Carrigan advances other grounds of appeal that are essentially founded on her position that it would be "manifestly unfair" to her and the two daughters to award Ms. Quinn the death benefit. These other grounds include claims of unjust enrichment and the application of common law and equitable remedies. I would not give effect to any of these grounds of [page178] appeal. I am satisfied that the trial judge adequately addressed these arguments.

[84] In sum, I am of the view that the express provisions of s. 48 of the PBA displace the common law. The common law, including the principles of equity and equitable remedies, is subordinate to this legislation. By enacting an exhaustive set of rules dealing with pensions, the legislature has occupied the field and precluded recourse to the common law as argued by Mrs. Carrigan.

[85] Accordingly, I would dismiss the remaining grounds of appeal.

Final Comments

[86] In my view, the result in this case is dictated by a proper interpretation of s. 48 of the PBA and the s. 1 definition of spouse. However, as an aside, I would note that the trial judge's reasoning and decision in this case do not produce an inequitable result for Mrs. Carrigan. The PBA provides a detailed scheme for handling the claims of divorced or separated spouses, and s. 48(13) allows for the subordination of the usual system for distributing a death benefit under s. 48 to Family Law Act orders, arbitration awards or domestic contracts. None are present in this case.

[87] For these reasons, I would dismiss the appeal.

EPSTEIN J.A. (concurring with JURIANSZ J.A.): --

[88] Mr. Carrigan, after having been separated from Mrs. Carrigan for a number of years and while living with Ms. Quinn in what was clearly a long-term relationship, made a designation under s. 48(6) of the PBA [Pension Benefit Act, R.S.O. 1990, c. P.8] concerning his pension benefits. The effect of this designation was that in the event of his death before payment of his deferred pension commenced and he did not have a spouse or was living separate and apart from his spouse, the designated individuals became beneficiaries entitled to be paid an amount equal to the commuted value of his deferred pension.

[89] The question on appeal is whether, in the circumstances that existed at the time of Mr. Carrigan's death, his designated beneficiaries, namely, his legally married spouse and their two daughters, became entitled to his pre-retirement death benefits.

[90] I agree with Juriansz J.A. that the answer to this question is yes and that the appeal should therefore be allowed.

[91] Section 1 of the PBA recognizes both categories of relationships in which Mr. Carrigan was involved at the time of his [page179] death -- Mrs. Carrigan, his legally married spouse, and Ms. Quinn, his common law spouse -- as spousal relationships. The PBA therefore contemplates a situation, such as the one in which Mr. Carrigan found himself, where an individual can have two spouses simultaneously.

[92] My colleague LaForme J.A. is of the view that since s. 1 of the PBA allows for two spousal relationships to exist at the same time, s. 48 of the PBA should be interpreted as being capable of applying to two co-existing spousal relationships. My colleague Juriansz J.A. is also prepared to accept such a possibility. I respectfully disagree. I am of the view that the wording of s. 1 and the wording and structure of s. 48 of the PBA make it clear that the legislation can only be interpreted as applying to one spousal relationship at any point in time.

[93] In terms of the plain language of the PBA, I start, as did Juriansz J.A., with the definition of spouse. As my colleague points out, in para. 20 above, s. 1 defines "spouse" as being "either of two persons", not three, and as belonging to one category -- legally married or common law.

[94] This wording leads me to the following conclusion. While the Act recognizes two categories of spouse, the scheme in s. 48, which determines the recipient of the pre-retirement death benefit, is expressly designed to apply to the situation where the member of the pension plan has only one spouse at a time.

[95] The language used throughout s. 48 reinforces this conclusion. I point specifically to the wording found in s. 48(1)-(4), (6) and (14), each of which is written in contemplation of only one spouse. For example, s. 48(1) refers to "the person who is his or her spouse", phraseology repeated or only slightly varied in the other provisions (emphasis added).

[96] Turning to the structure of the entitlement scheme, there is no debate over the fact that the scheme creates a spousal priority, a priority that is lost if, at the time of death, the pension member has no spouse or lives separate and apart from his or her spouse. In that event, s. 48(6) is engaged and the pension benefits go to the person or persons in whose favour a designation has been made, failing which the benefits become the property of the pension holder's estate under s. 48(7). Notably, under ss. 48(6)(b) and 48(7)(b), the entitlement of the designated beneficiaries or the estate to the pension benefits depends on the pension member's not having a spouse or living separate and apart from his or her spouse at the time of death.

[97] As observed by Juriansz J.A., the problem is that it is not possible to read s. 48(3) as applying to a common law spouse as, if the member of the pension plan is living separate and apart [page180] from an individual with whom he is not married, that individual is not a "spouse" under s. 1 of the PBA. Obviously, the same observation must be made in relation to s. 48(6)(b) and (7)(b).

[98] The subsections dealing with the circumstances under which a designation may be effective or under which the benefits may go to the member's estate cannot be ignored. Once a finding is made, as it was by the motion judge, that at the time of death Mr. Carrigan was living separate and apart from Mrs. Carrigan, his legally married spouse, then s. 48(3) triggers the beneficiary designation under s. 48(6) of the Act.

[99] Based on this analysis, I agree with Juriansz J.A. that s. 48 must be interpreted to mean that if, at the time of death, the pension benefit holder had a legally married spouse from whom he or she was living separate and apart, a designation that had been made under s. 48(6) would apply regardless of the fact that he was living with a person who fell within one of the two definitions of spouse.

[100] At the time of his death, Mr. Carrigan was in that position. He was married to Mrs. Carrigan and he was living separate and apart from her. This engages s. 48(3), which in turn eliminates the application of the spousal priority set out in s. 48(1) and allows for the application of s. 48(6). The result is that Mrs. Carrigan and the Carrigans' two daughters, as designated beneficiaries under s. 48(6) of the PBA, are entitled to the pension benefit.

Appeal allowed.

Notes

Note 1: For simplicity's sake, I use the term "common law" to refer to a person not legally married to but living with the member of the pension plan. The term "common law" is not used in the Pension Benefits Act.