Court of Appeal for Ontario

Date: February 15, 2018 Docket: C62808

Judges: Rouleau, Trotter and Paciocco JJ.A.

Between

Charlene Victoria Fawcett Applicant (Appellant)

and

Timothy Robert Fawcett Respondent (Respondent)

Counsel

Adam Pantel, for the appellant

John F. Black, for the respondent

Heard

November 14, 2017

Appeal

On appeal from the judgment of Justice Timothy Minnema of the Superior Court of Justice, dated August 23, 2016, with reasons reported at 2016 ONSC 5331.

Trotter J.A.:

A. Introduction

[1] This appeal deals with the division of a federal pension as family property under the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA").

[2] The appellant has a Canadian Forces pension, provided by the Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17 (the "CFSA"). The parties agreed that the commuted value of the pension was $747,200. The pension has matured and is "in pay", meaning that the appellant receives monthly payments.

[3] To satisfy an equalization payment of $313,002, the trial judge ordered that an application be made to the pension administrator of the Canadian Forces pension to transfer this amount to the respondent. The appellant would have preferred to pay the respondent on a monthly basis by having her pension payments split at source. The respondent wanted an immediate lump-sum transfer. The trial judge held that the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II (the "PBDA"), under which the CFSA pension is administered, only allows for a lump-sum division.

[4] As explained below, I agree with the trial judge's interpretation of the PBDA – it contains no provision that would enable the pension administrator to divide monthly payments. Moreover, the trial judge's order was not precluded by the pension division provisions of the FLA. I would dismiss the appeal.

B. The Facts

(1) The Parties

[5] The parties are both in their 50's. They cohabited for three years before marrying in 1994. They separated in July of 2013. They have three children who were ages 21, 19, and 17 at the time of trial.

[6] The appellant was the primary income-earner during the marriage. She joined the Canadian Forces before she married the respondent. She retired in 2008 and started drawing her Canadian Forces pension. The appellant now enjoys success as a financial planner/advisor with the Royal Bank of Canada. She has pensions from the Royal Bank Pension Plan and RBC Dominion Securities Pension Plan, but they have yet to mature.

[7] During the relationship, the respondent qualified as a teacher. He became a substitute teacher in 2005, and then a permanent, full-time teacher in 2011.

(2) Proceedings at Trial

[8] The parties were able to settle many of the issues arising from the breakdown of their marriage. They went to trial to resolve questions of child support, special expenses, and property issues. This appeal is only concerned with the division of the appellant's Canadian Forces pension.

[9] In ascertaining the value of this pension, the parties relied upon a letter sent to the appellant by National Defence. This letter, dated August 28, 2014, is significant because it also highlights the restrictions placed upon the administrator of the CFSA pension. As the letter states:

Below you will find the financial information you requested under Section 13(2) of the Pension Benefits Division Act (PBDA), with respect to your pension entitlement under the Canadian Forces Superannuation Act.

Mr. Tim Fawcett would receive approximately $373,600.00 as a result of the division of your pension for the cohabitation period of 14 May 1994 to 24 July 2013. This one-time lump sum payment must be deposited into his locked-in RRSP account. There woul