COURT OF APPEAL FOR ONTARIO

CITATION: Reid v. Saliba, 2007 ONCA 93

DATE: 20070213

DOCKET: C44778

RE: CAROL REID (Applicant/Respondent in Appeal) – and – GEORGE PAUL SALIBA (Respondent/Appellant in Appeal)

BEFORE: LASKIN, JURIANSZ JJ.A. and CUNNINGHAM A.C.J. (Ad hoc)

COUNSEL: Tilda M. Roll for the appellant

Jacqueline M. Mills for the respondent

HEARD & RELEASED ORALLY: February 7, 2007

On appeal from the judgment of Justice Susanne R. Goodman of the Superior Court of Justice dated December 30, 2005.

E N D O R S E M E N T

[1] Mr. Saliba raises two issues on his appeal: first, the trial judge erred in her interpretation of paragraph 6 of the divorce judgment; second, that she erred in awarding interest at the rate provided in the divorce judgment (10%) instead of the rate under the Courts of Justice Act.

1. The Interpretation of Paragraph 6 of the Divorce Judgment

[2] The trial judge was correct in concluding that the appellant’s interest in the Air Canada Pension Plan was a property interest. Under paragraph 6 of the divorce judgment, the parties agreed that the respondent was effectively entitled to what became a 35.17% share in that property interest, that is, in Mr. Saliba’s pension benefits “on the same terms and conditions he receives them when he receives them.”

[3] Mr. Saliba contends that he did not receive his pension benefits until he began receiving monthly payments under the annuity into which he eventually transferred the lump sum amount of his pension. We disagree with that contention.

[4] Likely the parties did contemplate that receipt of the pension benefits would begin when monthly payments began. Mr. Saliba, however, retired early, and elected to transfer his pension money initially into a locked-in RRSP. At that point the trial judge concluded he was in receipt of his pension benefits. We agree with her conclusion. She took a common sense and practical view of the meaning of the word “receives” under the divorce judgement. Mr. Saliba effectively received his benefits when he chose to direct them into the RRSP. He received them because he had control over them. Thus at that time, in July 1992, Ms. Reid was equally entitled to a lump sum transfer of her interest into an RRSP.

[5] Mr. Saliba argues that the trial judge failed to give effect to the distinction in the legislation between “pension benefit” and “pension benefit credit.” Bearing in mind that the divorce judgement was drafted nearly 20 years ago when lawyers were not as sophisticated as they now are about the intricacies of pension claims, we think that the trial judge correctly interpreted paragraph 6 by looking at the common sense and ordinary meaning of the word “receives.” We, therefore, decline to give effect to this ground of appeal.

2. Interest Rate

[6] Ms. Reid’s claim was a claim under the divorce judgment. That judgment provided for interest on unpaid claims at 10% per annum. Therefore, the trial judge correctly used this rate in calculating the amount of the award.

[7] For these brief reasons, the appeal is dismissed, with costs fixed in the amount of $3,500, inclusive of disbursements and G.S.T.

“John Laskin J.A.”

“R. Juriansz J.A.”

“Cunningham A.C.J.”