Vladescu v. CTVglobemedia Inc. et al.

[Indexed as: Vladescu v. CTVglobemedia Inc.]

Ontario Reports

Court of Appeal for Ontario,

Doherty, MacPherson and Gillese JJ.A.

June 27, 2013

116 O.R. (3d) 177 | 2013 ONCA 448

Case Summary

Pensions — Assignment — Deceased warranting and representing in separation agreement that his then spouse was solely entitled to full survivor benefits under his pension plan and that she would continue to be sole and exclusive person entitled to survivor benefits — Separation agreement also providing that if deceased remarried or cohabited with another person he would make all possible efforts to enter into agreement with that person in which she would release all claims she had to his pension — Deceased remarrying and dying before he became eligible to receive immediate pension benefit — Relevant provisions in separation agreement not amounting to clear and unequivocal assignment of his pre-retirement death benefit to his former spouse.

F was a member of a federally regulated pension plan. In 2002, he entered into a separation agreement with the plaintiff, his then spouse. Paragraph 13.2 of the separation agreement provided that F warranted and represented that the plaintiff was solely entitled to full survivor benefits of his pension plan. Paragraph 13.3 provided that the plaintiff "shall continue to be the sole and exclusive person entitled to survivor benefits" until F's death. Paragraph 13.4 provided that F agreed not to do or refrain from doing anything that would disentitle the plaintiff to full survivor benefits. In para. 13.5, F agreed that should he remarry or cohabit with another person, he would "make all possible efforts" to enter into an agreement with that person in which she would release all claims she had to his pension. F and the plaintiff were subsequently divorced, and F remarried in 2004. He died in 2009, before he became eligible to receive an immediate pension benefit. The plaintiff brought an action in which she claimed entitlement to all survivor benefits under the pension plan. She brought a motion for summary judgment for an order requiring the plan administrator to pay to her F's pre-retirement death benefit. The motion judge determined that s. 25(4) of the Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.) ("PBSA") permitted F to assign his pre-retirement death benefit to the plaintiff, but that the relevant provisions of the separation agreement did not amount to an assignment of those benefits to her. He dismissed the motion and the action. The plaintiff appealed.

Held, the appeal should be dismissed.

In the pension context, nothing short of specific, clear and unambiguous language is sufficient to effect an assignment. Paragraph 13 of the separation agreement did not amount to an assignment of F's pre-retirement death benefit to the plaintiff. Paragraph 13.2 was simply an acknowledgement of the plaintiff's legal rights at the time the separation agreement was executed. It was not a transfer of rights and did not purport to be. In light of para. 13.5, paras. 13.3 and 13.4 could not be interpreted as an assignment of the pre-retirement death benefit to the plaintiff. Paragraph 13.5 did not state that the plaintiff was entitled to the death benefit notwithstanding a subsequent spouse. On the contrary, it was an express recognition that a subsequent spouse would have a superior claim to that benefit. Moreover, paras. 13.3 and [page178] 13.4 did not contain sufficiently clear and unambiguous language to amount to an assignment. The word "assignment" was not used, and paras. 13.3 and 13.4 did not contain language in which F agreed to transfer a specific interest in his pension to the plaintiff. Paragraph 13.5 revealed that the parties to the separation agreement recognized that a future spouse would be entitled to F's pension benefits, including the pre-retirement death benefit, unless the future spouse released her rights to those benefits. Such recognition could not be reconciled with the fundamental nature of an assignment, which is the transfer of rights to the assignee.

In light of that conclusion, it was unnecessary to decide whether the motion judge erred in determining that s. 25(4) of the PBSA permits the assignment of pre-retirement death benefits.

Ontario Teachers' Pension Plan Board v. Ontario (Superintendent of Financial Services) (2004), 2004 CanLII 7628 (ON CA), 70 O.R. (3d) 61, [2004] O.J. No. 331, 236 D.L.R. (4th) 514, 182 O.A.C. 339, 39 C.C.P.B. 72, 6 E.T.R. (3d) 68 (C.A.), consd

Teamsters & Participating Employers of Ontario Pension Plan v. Hay (2003), 2003 CanLII 26079 (ON SC), 65 O.R. (3d) 744, [2003] O.J. No. 2575, [2003] O.T.C. 582, 37 C.C.P.B. 155, 2 E.T.R. (3d) 238, 43 R.F.L. (5th) 215, 123 A.C.W.S. (3d) 886 (S.C.J.), distd

Other cases referred to

Lawson Graphics Pacific Ltd. v. Simpson, 1987 CanLII 2726 (BC SC), [1987] B.C.J. No. 375, 12 B.C.L.R. (2d) 126, 36 B.L.R. 223, 4 A.C.W.S. (3d) 47 (S.C.); Trick v. Trick (2006), 2006 CanLII 22926 (ON CA), 81 O.R. (3d) 241, [2006] O.J. No. 2737, 271 D.L.R. (4th) 700, 213 O.A.C. 105, 54 C.C.P.B. 242, 31 R.F.L. (6th) 237, 149 A.C.W.S. (3d) 843 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 388]

Statutes referred to

Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) [as am.]

Pension Benefits Act, R.S.O. 1990, c. P.8 [as am.]

Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.), ss. 2 [as am.], 7.4 [as am.], 22(5), 23 [as am.], (1) [as am.], (5) [as am.], 25(4) [as am.], (5) [as am.], 36(2), (3) [as am.], (b) [as am.]

APPEAL from the judgment of O'Neill J., [2012] O.J. No. 3417, 2012 ONSC 4233 (S.C.J.) dismissing an action.

Richard Greene and Michael Zalev, for appellant.

Frank Cesario and Stephanie Kalinowski, for respondents.

The judgment of the court was delivered by

[1] GILLESE J.A.: — In 2002, could a member of a federally regulated pension plan assign his pre-retirement death benefit to his spouse? If so, did certain provisions in a separation agreement amount to an assignment? This appeal raises both questions. [page179]

Overview

[2] Gabriel Filotti was a member of a federally regulated pension plan from 1983 until he died in 2009. The pension plan is governed by the Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.) (the "PBSA").

[3] Mr. Filotti married Florina Vladescu in 1998. On August 27, 2002, after the demise of their relationship, he and Ms. Vladescu entered into a separation agreement (the "Separation Agreement") in which he represented that she was, and would continue to be, solely entitled to "survivor benefits" under his pension plan. However, in another provision shortly thereafter in the Separation Agreement, Mr. Filotti agreed that if he were to later cohabit with another person or remarry, he would make "all possible efforts" to enter into an agreement with his future partner in which she would release all claims she had to his pension.

[4] Mr. Filotti and Ms. Vladescu were divorced on March 20, 2003.

[5] Mr. Filotti married Natalia Garanovscaia on April 18, 2004.

[6] Mr. Filotti died on February 10, 2009. At that time, he remained a member of the pension plan but was not entitled to an immediate pension.

[7] Ms. Vladescu brought an action in which she claimed entitlement to all survivor benefits under the pension plan. She then brought a summary judgment motion for an order requiring the plan administrator to pay to her Mr. Filotti's pre-retirement death benefit.

[8] The motion judge determined that

(1) s. 25(4) of the PBSA permitted Mr. Filotti to assign his pre-retirement death benefit to Ms. Vladescu, but

(2) the relevant provisions of the separation agreement did not amount to an assignment of those benefits to her.

[9] He dismissed Ms. Vladescu's summary judgment motion and action, and ordered the plan administrator to pay the full amount of the pre-retirement death benefit to Ms. Garanovscaia.

[10] Ms. Vladescu appeals.

[11] For the reasons that follow, I would dismiss the appeal. Those wishing to read the full text of the various statutory provisions referred to throughout are directed to Schedule "A", located at the end of these reasons. Those provisions were in force at the time Mr. Filotti died. [page180]

Background

The pension plan

[12] Mr. Filotti was a cameraman for CTV Inc.[^1] ("CTV"). He became a member of the defined benefit retirement plan for employees of CTV Inc. (the "Plan") in 1983. He remained a member of the Plan until his death on February 10, 2009.

[13] CTV is the administrator of the Plan and the respondent in this appeal. The Plan is registered under the PBSA and the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).

The meaning of "survivor benefits"

[14] In that part of the Separation Agreement dealing with Mr. Filotti's pension, the term "survivor benefits" is used. Because "survivor benefits" is not a defined term in the PBSA, the Plan or the Separation Agreement, its meaning is unclear. Robin Borisko, manager of pensions at Bell Media Inc. (a successor corporation to CTV), deposed that "survivor benefits" is a generic term which can refer to two different types of benefits under the Plan.

[15] First, "survivor benefits" can refer to a monthly survivor pension that is payable when a retired member dies. I offer a simple example of this type of survivor benefit. A Plan member marries only once, stays in the Plan until retirement and is married when (s)he retires. On retirement, the Plan member would receive a monthly pension and, when the member dies, his or her spouse will receive a survivor pension.[^2] This type of survivor benefit is also referred to as a "survivor pension" or a "joint and survivor pension".

[16] Second, "survivor benefits" can refer to a pre-retirement death benefit under s. 23 of the PBSA. A pre-retirement death benefit arises when a Plan member dies before becoming eligible to receive an immediate pension. The person who qualifies as the Plan member's "survivor" is entitled to that portion of the pension benefit credit to which the member would have been entitled on the day of his or her death. This type of survivor benefit is also referred to as a "death benefit" or the "pre-retirement death benefit". [page181]

The Separation Agreement and Direction

[17] Mr. Filotti and Ms. Vladescu were married on June 26, 1998. When their marriage failed, they entered into the Separation Agreement. Both had separate, independent legal advice throughout the negotiations that led up to the Separation Agreement and at the time it was executed.

[18] Paragraph 13 of the Separation Agreement deals with Mr. Filotti's pension. In it, the parties purport to deal with "survivor benefits" under the Plan. Because of para. 13's critical role in this appeal, I set it out in full, below. Mr. Filotti is referred to as the "husband" and Ms. Vladescu as the "wife".

13. HUSBAND'S PENSION

13.1 The husband is entitled to a pension pursuant to the Defined Benefit Pension Plan for Employees of CTV Inc., Plan Registration Number PBSA55189.

13.2 The husband warrants and represents that the wife is solely entitled to full survivor benefits of his pension plan.

13.3 The wife shall continue to be the sole and exclusive person entitled to survivor benefits until the husband's death.

13.4 The husband agrees that he will not at any time do or refrain from doing any act or thing that would disentitle the wife to full survivor benefits of the said pension. The husband will sign any documents that may be required by the Pension Administrator to give effect to this paragraph including but not limited to Schedule "C" annexed hereto.

13.5 The husband further agrees that should he cohabit with another person or remarry, he will make all possible efforts to enter into a Cohabitation Agreement or Marriage Contract wherein the wife's rights under this paragraph are recognized and his future wife or common-law wife releases all rights or claims of any kind or nature whatsoever to his pension.

13.6 Provided that the husband has complied with all of his obligations pursuant to this paragraph, the wife hereby releases all of her rights to the husband's pension except her rights pursuant to this paragraph.

[19] Schedule "C" to the Separation Agreement, referred to in para. 13.4, reads as follows:

IRREVOCABLE DIRECTION

TO: The Administration of the Defined Benefit Retirement Plan for Employees of CTV Inc.

AND TO WHOM IT MAY CONCERN:

RE: Pension Plan Registration No. PBSA 55189 Gabriel Filotti Pension Holder No. 474 333 614

I, Gabriel Filotti, irrevocably authorize and direct you to

pay all survivor benefits pursuant to the above pension to

Florina Vladescu in the event of my death and this shall be

your good and sufficient authority for so doing. [page182]

[20] Schedule "C" was signed by Mr. Filotti and dated August 27, 2002 (the "Direction").

[21] Mr. Filotti and Ms. Vladescu were divorced by judgment dated March 20, 2003 (the "divorce judgment"). The divorce judgment incorporates, by reference, para. 13 of the Separation Agreement.

CTV receives the Direction

[22] In early July 2002 -- not long before the Separation Agreement was executed -- CTV received a document from Mr. Filotti. The document was entitled "Group Registered Pension Plan Personal Information Change Form", dated July 2, 2002 and signed by Mr. Filotti (the "first change form").

[23] In the first change form, Mr. Filotti changed his beneficiary designation, and appointed Ms. Vladescu as his beneficiary, indicating that she was his wife and entitled to 100 per cent of his pension benefits.

[24] On November 5, 2002, CTV received a letter from Ms. Vladescu's lawyer (the "first November 5 letter"). Two documents were enclosed with the first November 5 letter: the Direction and Schedule "B" to the Separation Agreement. Schedule "B" was a payroll deduction direction in relation to Mr. Filotti's life insurance policy premiums.

[25] The opening words in the first November 5 letter are: "Enclosed please find two (2) Irrevocable Directions executed by Mr. Gabriel Filotti". Apart from these words, there is no mention of the Direction or Mr. Filotti's pension in the first November 5 letter.

[26] CTV gave a copy of the Direction to Cowan Wright Beauchamp ("CWB"),[^3] the Plan's record keeper.

[27] After discussions with CWB about the nature of the Direction, CTV telephoned Ms. Vladescu's lawyer to say that without a divorce decree or court order, CTV could not make changes to Mr. Filotti's pension provisions. A few days later, Ms. Vladescu's lawyer told CTV to disregard the first November 5 letter because it had been sent in error.

[28] Sometime in the two months that followed, Ms. Vladescu's lawyer sent CTV another letter, also dated November 5, 2002 (the "second November 5 letter"). Only the Direction was attached to the second November 5 letter. The first paragraph of the second November 5 letter reads as follows: [page183]

Enclosed please find an Irrevocable Direction executed by Mr. Gabriel Filotti, an employee of your company, directing you to pay all survivor benefits, pursuant to the above pension to Florina Vladescu in the event of his death.

[29] The second November 5 letter asked CTV to confirm that it had received the letter and Direction, and that the recipient employee of CTV was the person to whom the information should be sent.

[30] CTV confirmed to Ms. Vladescu's lawyer that it had received the second November 5 letter. It also advised that it had faxed a copy to CWB, and that it had placed the documents on its own file as well.

Mr. Filotti marries for the second time

[31] Mr. Filotti married Ms. Garanovscaia on April 18, 2004.

[32] Mr. Filotti sent CTV a plan personal information change form dated May 7, 2004 (the "second change form"). In it, he declared that Ms. Garanovscaia was his spouse for the purposes of the Plan and designated her as his primary beneficiary.

[33] CTV forwarded the second change form to CWB. When CWB received it, they noticed that it was not consistent with the first change form or the Direction. It asked CTV for instructions on how to deal with the second change form.

[34] CTV contacted Mr. Filotti and asked for clarification. When it received no clarification from him, CTV maintained Ms. Vladescu as Mr. Filotti's designated beneficiary.

[35] However, in February of 2006, just before Mr. Filotti left on a work assignment in Kandahar, he completed a declaration of spousal status in which he stated that he and Ms. Garanovscaia had been married on April 18, 2004.[^4] In the declaration, Mr. Filotti also declared that "no interest in my pension entitlement . . . has been assigned or granted by an agreement or court order".

[36] Since CTV knew that Mr. Filotti had remarried, when he returned from Kandahar, it asked him for a copy of the divorce judgment. During that conversation, Mr. Filotti told CTV that he knew his current spouse, Ms. Garanovscaia, was entitled to his pension; that the divorce judgment only obligated him to use [page184] his best efforts to have Ms. Garanovscaia waive her rights to his pension; and that Ms. Vladescu would not receive anything.

[37] In early July 2006, Mr. Filotti gave CTV a copy of the divorce judgment.

[38] CTV prepared a letter dated July 27, 2006. It was addressed to Mr. Filotti and shows that a copy was to be sent to Ms. Vladescu. In the July 27 letter, CTV set out its understanding of para. 13 of the Separation Agreement. The relevant part of the July 27 letter reads as follows:

We cannot administer sections 13.2 and 13.3 [of the Separation Agreement]. It is not possible under the Pension Benefits Standards Act (PBSA) to maintain Ms. Vladescu as your "spouse" under the Plan, since, once you divorced, Ms. Vladescu ceased to qualify as your "spouse". Also, the [separation] agreement does not in our view constitute an assignment of any portion of your pension benefits credits to Ms. Vladescu. While section 13.5 requires you to "make all possible efforts" to have your new spouse waive her rights to survivor benefits, we understand that your current spouse has not done so. Therefore, the Plan is not able to recognize Ms. Vladescu as your "spouse" under the Plan and she would not be entitled to any survivor benefits or to a portion of your pension.

If our interpretation does not reflect what you and Ms. Vladescu intended, please provide us with a certified copy of a revised court order as soon as possible.

[39] On July 28, 2006, CTV met with Mr. Filotti and gave him a copy of the July 27 letter. CTV explained its view that there had been no assignment of his pension entitlement to Ms. Vladescu and that if Mr. Filotti had a qualifying spouse when he died, that person would receive his pension benefits, not Ms. Vladescu. Mr. Filotti said that was what he had intended and expected.

[40] CTV provided evidence to show that it sent Ms. Vladescu a copy of the July 27 letter. Ms. Vladescu says that she never received it.

[41] At the time Mr. Filotti died, he and Ms. Garanovscaia were separated, but not divorced.

The pre-retirement death benefit

[42] Mr. Filloti died on February 10, 2009. Because he died before he was eligible to receive an immediate pension benefit, a pre-retirement death benefit became payable from the Plan. The commuted value of this benefit, as of February 20, 2009, was calculated by the Plan's actuaries to be $445,285.47. [page185]

The Decision under Appeal

[43] Ms. Vladescu started an action in which she claimed entitlement to all survivor benefits flowing from Mr. Filotti's membership in the Plan. She then brought a summary judgment motion in which she sought an order requiring CTV to pay her Mr. Filotti's pre-retirement death benefit.

[44] CTV responded to the motion in its role as Plan administrator. It submitted that s. 25(4) of the PBSA did not permit Mr. Filotti to assign his pre-retirement death benefit to Ms. Vladescu and, in any event, para. 13 of the Separation Agreement did not amount to an assignment. Its position was that the pre-retirement death benefit, together with accrued interest, was payable to Ms. Garanovscaia.

[45] By judgment dated July 20, 2012 (the "judgment"), the motion judge dismissed Ms. Vladescu's summary judgment motion and action, and ordered CTV to pay the pre-retirement death benefit to Ms. Garanovscaia.

[46] The motion judge held that pursuant to s. 25(4) of the PBSA, Mr. Filotti could assign his pre-retirement death benefit to Ms. Vladescu. He noted that s. 25(4) is an exception to the general prohibition against assigning any interest in a pension. Section 25(4) allows a member to "assign all or part of" the member's "pension benefit, pension benefit credit or other benefit under the plan" to the member's spouse or former spouse, in the context of the breakdown of a spousal relationship. He accepted that s. 25(4) encompassed the pre-retirement death benefit, saying that had Parliament intended to preclude the assignment of a pre-retirement death benefit, "it ought to have said so in clear and unambiguous language".

[47] However, the motion judge concluded that para. 13 of the Separation Agreement did not amount to an assignment. He reasoned as follows.

[48] An assignment is inherently irrevocable because once an interest is assigned, generally the assignor cannot take it back. But para. 13.5 of the Separation Agreement specifically contemplated that Mr. Filotti might cohabit with another or remarry, in which case he would be obliged to make "all possible efforts" to have the future wife or common law spouse release her claim to his pension. That is, para. 13.5 expressly contemplated that a future spouse might not release her rights to Mr. Filotti's pension and that her rights would "trump" those of Ms. Vladescu. Thus, despite the wording of other parts of para. 13 and the Direction, para. 13.5 was an acknowledgment [page186] that a full or complete transfer or assignment of the pre-retirement death benefit might not be possible.

The Issues

[49] On appeal, Ms. Vladescu raises a single issue: did the motion judge err in finding that Mr. Filotti had not assigned his pre-retirement death benefit to her?

[50] CTV contends that the motion judge correctly decided the assignment issue but that he erred in his interpretation of s. 25(4). It asks this court to decide a second issue: did the motion judge err in holding that s. 25(4) of the PBSA permitted Mr. Filotti to assign his pre-retirement death benefit to Ms. Vladescu? If so, that would provide an alternative reason for dismissing the appeal.

Did Mr. Filotti Assign his Pre-Retirement Death Benefit to Ms. Vladescu?

[51] As previously noted, at the time of Mr. Filotti's death, he and Ms. Garanovscaia were separated, but not divorced. Thus, for pension purposes, Ms. Garanovscaia was Mr. Filotti's spouse at the time of his death.

[52] Accordingly, as I will explain, under the relevant PBSA provisions, Ms. Garanovscaia was entitled to the pre-retirement death benefit unless Mr. Filotti could have, and did, assign that benefit to Ms. Vladescu, in writing.

The relevant PBSA provisions

[53] The PBSA creates a presumptive entitlement to the pre-retirement death benefit in favour of a surviving spouse. Specifically, on the date of Mr. Filotti's death, s. 23(1) provided that if a pension plan member died before becoming eligible to receive an immediate pension benefit, his or her survivor was entitled "to that portion of the pension benefit credit to which the . . . member would have been entitled on the day of death". The amount to which the survivor is entitled is termed the "pre-retirement death benefit".

[54] Section 23(1) read, at that time, as follows:

23(1) If a member or former member of a pension plan who is entitled to a deferred pension benefit pursuant to subsection 17(1) (or, in the case of a member, would be so entitled if the member ceased membership in the plan) dies before becoming eligible to receive an immediate pension benefit in accordance with subsection 16(2), the survivor, if any, is entitled to that portion of the pension benefit credit, calculated in accordance with section 21, to which the member or former member would have been entitled on the day of death if the member or former member had terminated [page187] employment on that day and had not died, that is attributable to the member's or former member's membership in the plan after December 31, 1986.

(Emphasis added)

[55] Because Mr. Filotti had no common law partner at the time of his death and Ms. Garanovscaia remained as his spouse at that time, she is the survivor for the purposes of s. 23. This can be seen from the definition of "survivor" in s. 2.

2(1) In this Act, . . .

"survivor", in relation to a member or former member, means

(a) if there is no person described in paragraph (b), the spouse of the member or former member at the time of the member's or former member's death, or

(b) a person who was the common-law partner of the member or former member at the time of the member's or former member's death[.]

(Emphasis added)

[56] Therefore, Ms. Garanascovscaia is presumptively entitled to the pre-retirement death benefit.

[57] The surviving spouse's statutory priority to the member's pre-retirement death benefit is underscored by s. 23(5), which precludes the surviving spouse from surrendering his or her entitlement to that benefit prior to the member's death. Section 23(5) reads as follows:

23(5) A pension plan may provide that a survivor may, after the death of a member or former member, surrender, in writing, the pension benefit or pension benefit credit to which the survivor is entitled under this section and designate a beneficiary who is a dependant, within the meaning of subsection 8500(1) of the Income Tax Regulations, of the survivor, member or former member.

(Emphasis added)

[58] In contrast, a spouse may release or waive his or her entitlement to post-retirement pension benefits, prior to the member's retirement, by completing a prescribed form: s. 22(5).

[59] The PBSA declares void any agreement or arrangement to assign any benefit provided under a pension plan: s. 36(2). However, s. 36(3)(b) creates an exception to this prohibition. It permits the assignment of an interest in a pension benefit, where the assignment is made under s. 25(4) pursuant to a written agreement.

[60] The applicable versions of s. 36(2) and (3) read as follows: [page188]

36(2) Any agreement or arrangement to assign, charge, anticipate or give as security

(a) any benefit provided under a pension plan, or

(b) any money withdrawn from a pension fund pursuant to section 26

is void.

36(3) Subsection (2) does not apply to prevent the assignment of an interest in a pension benefit, or in a life-annuity of the prescribed kind resulting from a transfer or purchase pursuant to section 26, where the assignment

(a) is ordered by a court pursuant to provincial property law (within the meaning of subsection 25(1)); or

(b) is made under subsection 25(4) pursuant to a written agreement.

(Emphasis added)

[61] Section 25(4) provides that on marriage breakdown, a member may assign all or part of the member's pension benefits to the member's spouse or former spouse. It read [in 2009] as follows:

25(4) Notwithstanding anything in this section or in provincial property law, a member or former member of a pension plan may assign all or part of that person's pension benefit, pension benefit credit or other benefit under the plan to that person's spouse, former spouse, common-law partner or former common-law partner, effective as of divorce, annulment, separation, or breakdown of the common-law partnership, as the case may be, and in the event of such an assignment the assignee shall, in respect of the assigned portion of the pension benefit, pension benefit credit or other benefit, be deemed for the purpose of this Act, except subsections 21(2) to (6),

(a) to have been a member of that pension plan, and

(b) to have ceased to be a member of that pension plan as of the effective date of the assignment,

but a subsequent spouse or common-law partner of the assignee is not entitled to any pension benefit, pension benefit credit or other benefit under the pension plan in respect of that assigned portion.

(Emphasis added)

The meaning of assignment

[62] The word "assignment" is not defined in the PBSA. Its ordinary legal meaning is the act of transferring, to another, all or part of one's property, interest or rights: B. Garner, ed., Black's Law Dictionary, 8th ed. (St. Paul, MN: Thomson/West, 2004), at p. 128. In Trick v. Trick (2006), 2006 CanLII 22926 (ON CA), 81 O.R. (3d) 241, [2006] O.J. No. 2737 (C.A.), at para. 47, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 388, this court similarly described an assignment in the pension context as a "transfer of rights to the pension". [page189]

[63] CTV contends that, in the pension context, nothing short of specific, clear and unambiguous language is sufficient to effect an assignment. I agree. As we have seen, a surviving spouse has a statutory priority to the pre-retirement death benefit. If the statutorily created presumptive entitlement can in fact be ousted by assignment under s. 25(4), clear language is necessary to achieve that ouster. Furthermore, clear language is also necessary for pension plan administrators to determine to whom payments are to be made and, thereby, fulfill their statutory obligation to administer plans and funds in accordance with the PBSA: s. 7.4.

The written agreement requirement

[64] As we have seen, s. 36(3)(b) of the PBSA permits the assignment of an interest in a pension benefit, "where the assignment . . . is made under subsection 25(4) pursuant to a written agreement".

[65] Ms. Vladescu submits that this requirement is met by any of three documents: the Direction, the divorce judgment or the Separation Agreement. In my view, only para. 13 of the Separation Agreement can possibly qualify as an "assignment made under s. 25(4) pursuant to a written agreement".

[66] The Direction is no more than what it purports to be: a direction and authorization that CTV pay "survivor benefits" to Ms. Vladescu. The essence of an assignment, as we have seen, is the transfer of rights. The Direction directs and authorizes -- it does not indicate any intent to transfer rights. The Direction is not an assignment.

[67] Nor is the divorce judgment. In the divorce judgment, para. 13 of the Separation Agreement (among others) is set out and is said to form part of it. The divorce judgment does not purport to transfer Mr. Filotti's pension rights to Ms. Vladescu.

[68] Before considering whether para. 13 of the Separation Agreement constitutes an assignment of Mr. Filotti's pre-retirement death benefit to Ms. Vladescu, it is useful to consider this court's decision in Ontario Teachers' Pension Plan Board v. Ontario (Superintendent of Financial Services) (2004), 2004 CanLII 7628 (ON CA), 70 O.R. (3d) 61, [2004] O.J. No. 331 (C.A.) ("Stairs").

The Stairs decision

[69] I begin with a note of caution. Stairs was decided under the Ontario Pension Benefits Act, R.S.O. 1990, c. P.8 ("PBA"). The assignment regime under the PBSA is very different from the PBA regime that operated when Stairs was decided. Among other things, at the time that Stairs was decided, the PBA did [page190] not provide for immediate division of pension benefits, instead using an "if and when" scheme. Much of the reasoning in Stairs is driven by the provisions of the PBA and the particular pension plan in issue. Given the significant differences in the statutory regimes and pension plan documents in the two cases, extreme caution must be exercised when considering the reasoning in Stairs and how it might inform the present case.

[70] The Stairs case involved Mr. Mowbray, a schoolteacher, and his former spouse, Ms. Stairs. They entered into a separation agreement after 29 years of marriage. He had contributed to his pension with the Ontario Teachers' Pension Plan (the "teachers' plan") for 25 of those years.

[71] In Stairs, the issue for the court was whether Mr. Mowbray had the right to assign his pre-retirement death benefit to Ms. Stairs, by way of domestic contract, in the absence of an express power of assignment in the PBA.

[72] This court held that Mr. Mowbray had an assignable interest in the pre-retirement death benefit that might become payable under the teachers' plan on his death. His interest in the teachers' plan was not confined to the deferred benefits to which he would become entitled on retirement.

[73] Further, this court found that, pursuant to para. 10(4) of the separation agreement between Mr. Mowbray and Ms. Stairs, Mr. Mowbray had assigned an interest in the pre-retirement death benefit to Ms. Stairs (the "Stairs assignment clause"). The Stairs assignment clause reads as follows [at para. 7]:

10(4) In the event a death benefit becomes payable under the pension and the wife is not the only surviving spouse of the husband then the wife will be entitled to an interest in the death benefit as follows:

twenty-five (25) years of married cohabitation during which pension contributions were made, divided by the total number of years (or portion thereof) during which contributions have been made to date of death, times the death benefit payable.

[74] As I have noted, there are significant differences between Stairs and the present case. Nonetheless, as will become evident, the Stairs assignment clause can be usefully compared to para. 13 of the Separation Agreement.

Paragraph 13 of the Separation Agreement

[75] I turn now to para. 13 of the Separation Agreement and ask: does it amount to an assignment?

[76] In my view, it does not.

[77] Paragraphs 13.2 to 13.5 of the Separation Agreement are the most germane to the question of assignment. For ease of reference, I set them out again now. [page191]

13.2 The husband warrants and represents that the wife is solely entitled to full survivor benefits of his pension plan.

13.3 The wife shall continue to be the sole and exclusive person entitled to survivor benefits until the husband's death.

13.4 The husband agrees that he will not at any time do or refrain from doing any act or thing that would disentitle the wife to full survivor benefits of the said pension. The husband will sign any documents that may be required by the Pension Administrator to give effect to this paragraph including but not limited to Schedule "C" annexed hereto.

13.5 The husband further agrees that should he cohabit with another person or remarry, he will make all possible efforts to enter into a Cohabitation Agreement or Marriage Contract wherein the wife's rights under this paragraph are recognized and his future wife or common-law wife releases all rights or claims of any kind or nature whatsoever to his pension.

[78] In para. 13.2, Mr. Filotti "warrants and represents" that Ms. Vladescu was solely entitled to full survivor benefits under the Plan. Paragraph 13.2 does not purport to assign or transfer Mr. Filotti's rights or interests under the Plan. It simply -- and correctly -- describes Ms. Vladescu's entitlement in respect of Mr. Filotti's pension benefits at the time that the Separation Agreement was executed.

[79] At that time, as Mr. Filotti's spouse, Ms. Vladescu was entitled to his "survivor benefits", in both senses of the term. As I explained, in this case, "survivor benefits" can refer to (1) a joint and survivor pension, or (2) the surviving spouse's entitlement to the pre-retirement death benefit under s. 23(1) of the PBSA. At the time the Separation Agreement was executed, it was unknown when Mr. Filotti would die. Depending on the timing of his death, one or other form of survivor benefit would become available. Whichever benefit became available, as his spouse, Ms. Vladescu would have been entitled to it.

[80] Thus, as I have said, para. 13.2 is an acknowledgment of Ms. Vladescu's legal rights at the time the Separation Agreement was executed. It was not a transfer of rights nor did it purport to be.

[81] What of paras. 13.3 and 13.4? At first blush, they might appear to be an assignment, by Mr. Filotti to Ms. Vladescu, of his rights and interests in the Plan. I have concluded, for two reasons, that they are not.

[82] First, in light of para. 13.5, as a matter of logic, paras. 13.3 and 13.4 cannot be interpreted as an assignment of the pre-retirement death benefit to Ms. Vladescu. Paragraph 13.5 does not state that Ms. Vladescu is entitled to the death benefit notwithstanding a subsequent spouse. On the contrary, it is an express recognition that a subsequent spouse would have a [page192] superior claim to that benefit. If the intent of the parties was that Mr. Filotti would transfer all of his rights in the pre-retirement death benefit to Ms. Vladescu, why would they have included a provision in which a subsequent spouse could take that very right?

[83] Second, paras. 13.3 and 13.4 do not contain sufficiently clear and unambiguous language to amount to an assignment. The word "assign" is not used. While that failure is not fatal, it is telling, given that both Mr. Filotti and Ms. Vladescu had legal advisors when the Separation Agreement was negotiated and executed. Nor do paras. 13.3 and 13.4 contain language in which Mr. Filotti agrees to transfer a specific interest in his pension to Ms. Vladescu. For example, para. 13.3 states that Ms. Vladescu "shall continue to be" entitled to survivor's benefits. That is not the language of a transfer of interest. Further, as previously discussed, there is a lack of clarity in the term "survivor benefits". Did the parties intend to include the pre-retirement death benefit, a post-retirement survivor pension or both?

[84] The assignment clause in Stairs stands in stark contrast to para. 13 of the Separation Agreement. In Stairs, the benefit being assigned/transferred is clearly described -- a "death benefit". Its nature as a contingent entitlement is also clearly spelled out -- "[i]n the event a death benefit becomes payable". The assignment clause in Stairs also clearly and unambiguously sets out what part of the death benefit was being transferred: 25 years, divided by the total number of years during which Mr. Mowbray made contributions to the teachers' plan, multiplied by the amount of the death benefit. And, in Stairs, Mr. Mowbray did not attempt to transfer any interest in the death benefit that might accrue to a future spouse. Rather, he assigned only that portion of the death benefit that had accrued during his marriage to Ms. Stairs. In fact, in Stairs, the parties expressly contemplated the existence of a future spouse and carved out, with specificity, Ms. Stairs' entitlement.

[85] In short, a comparison of the assignment clause in Stairs with para. 13 of the Settlement Agreement makes evident the lack of clarity and specificity in the latter. Further and most importantly, it highlights the significance of para. 13.5, which reveals that the parties to the Separation Agreement recognized that a future spouse would be entitled to Mr. Filotti's pension benefits, including the pre-retirement death benefit, unless the future spouse released her rights to those benefits. Such recognition cannot be reconciled with the fundamental nature of an assignment, which is the transfer of rights to the assignee. [page193]

The Hay decision

[86] Ms. Vladescu also relies on Teamsters & Participating Employers of Ontario Pension Plan v. Hay (2003), 2003 CanLII 26079 (ON SC), 65 O.R. (3d) 744, [2003] O.J. No. 2575 (S.C.J.) ("Hay"). I do not find that Hay assists her.

[87] The facts in Hay are these. Daphne Linthwaite and Donald Linthwaite were married on August 20, 1946. During the marriage, Mr. Linthwaite became a member of the teamsters' pension plan, which was governed by the PBSA. On August 16, 1984, Ms. Linthwaite and Mr. Linthwaite entered into a separation agreement containing the following provision:

The husband warrants that he has irrevocably elected to receive "normal pension benefits" from his place of employment and the husband agrees to appoint the wife as beneficiary of his employment pension plan and, subject to subparagraph (f), the husband further agrees not to change this appointment without the wife's consent.

[88] A copy of the separation agreement was sent to the pension plan administrator.

[89] When Mr. Linthwaite submitted his application to receive a pension, he named Ms. Linthwaite as his spouse and a joint annuitant with him. The calculation of his pension benefit, and the amount that would go to Ms. Linthwaite on his death, was based on his application and took into consideration, among other things, their respective ages.

[90] Four years after the separation agreement was executed, Mr. Linthwaite entered into a common law relationship with Ruth Hay, which continued until his death. In his will, Mr. Linthwaite purported to transfer his pension benefits to Ms. Hay.

[91] After Mr. Linthwaite's death, the plan administrator began making payments under the plan to Ms. Linthwaite. When Ms. Hay claimed them under the will, the payments were suspended. A court application was commenced to determine which of Ms. Linthwaite and Ms. Hay was entitled to the benefits.

[92] The application judge found in favour of Ms. Linthwaite. He held that Ms. Linthwaite had been designated the beneficiary of the survivor benefits and that the will had not revoked that designation. Accordingly, Ms. Linthwaite was entitled to the pension benefits.

[93] Hay is very different from the present case in two key ways. First, Hay was decided as a matter of a beneficiary designation, not assignment. Second, it is critical to understand the differences in the timing of the vesting of interests. [page194] Ms. Linthwaite's interest in Mr. Linthwaite's pension vested prior to his death, whereas Ms. Vladescu's interest could not arise before Mr. Filotti's death. These timing issues, as I explain, are critical.

[94] At the time that Mr. Linthwaite retired, he declared Ms. Linthwaite to be his spouse for purposes of the pension plan. His pension and the survivor pension were calculated accordingly. At that point at the latest, in my view, Ms. Linthwaite's interest in his pension benefit became vested. In light of para. 10.4 of the separation agreement, excerpted above, Mr. Linthwaite could not have unilaterally changed the beneficiary designation. Moreover, once Ms. Linthwaite's interest vested, the survivor benefit was no longer Mr. Linthwaite's to deal with. A will speaks from the date of death. At Mr. Linthwaite's death, he had already disposed of the survivor interest in his pension -- Ms. Linthwaite had a vested interest in it. Accordingly, Mr. Linthwaite had no remaining interest in his pension that he could dispose of. Thus, despite the wording of the will, Ms. Hay could take no interest in his pension.

[95] In the present case, as we have seen, any entitlement to the pre-retirement death benefit that Ms. Vladescu might have under the Separation Agreement was subject to the rights of a future spouse or partner by virtue of para. 13.5. By the time of Mr. Filotti's death, he had a qualifying spouse with statutory priority who took because he had not validly assigned entitlement to the pre-retirement benefit to Ms. Vladescu.

Conclusion on the assignment issue

[96] Ms. Vladescu also argued that the Separation Agreement, Direction and divorce judgment amount to an equitable assignment of the pre-retirement death benefit. She relies on Lawson Graphics Pacific Ltd. v. Simpson, 1987 CanLII 2726 (BC SC), [1987] B.C.J. No. 375, 36 B.L.R. 223 (S.C.), at para. 32, in which Southin J. adopted the proposition that "no particular form of words is necessary [to constitute an equitable assignment] so long as the words clearly show an intention that the assignee is to have the benefit of the chose in action".

[97] It is not clear to me that equitable assignment is available in the circumstances of this case, particularly in light of the wording of s. 25(4). However, and in any event, para. 13 of the Separation Agreement fails, for the reasons set out above, to clearly show an intention that Ms. Vladescu was to have the benefit of the pre-retirement death benefit.

[98] I end on this issue with an important observation. My conclusion that para. 13 of the Separation Agreement does not [page195] amount to an assignment of the pre-retirement death benefit to Ms. Vladescu does not render para. 13 meaningless. Had Mr. Filotti not remarried, he had the right to name a third party as his beneficiary under the Plan. Paragraph 13 of the Separation Agreement coupled with the Direction, which it will be recalled expressly states that it was "irrevocable", would have rendered any such attempt ineffective. Indeed, had Mr. Filotti died without a qualifying spouse, CTV advises that it would have treated the Direction as an irrevocable beneficiary designation and Ms. Vladescu would have been entitled to the pre-retirement death benefit.

Did the PBSA Permit Assignment of Pre-Retirement Death Benefits?

[99] CTV asks this court to find that the motion judge erred in determining that s. 25(4) of the PBSA permits the assignment of pre-retirement death benefits. Its position on this issue can be summarized as follows.

[100] A pre-retirement death benefit can only arise when a member dies before becoming eligible to receive an immediate pension. It cannot be calculated until the member dies. For example, in this case, at the time the Separation Agreement was entered into, no one knew when Mr. Filotti would die, how long he would work, what his future earnings would be, and when and whether he would live to retirement.

[101] Section 25(4) deems the assignee spouse to be a "former member" as of the date of the assignment. Section 25(5) requires the administrator to determine and administer the assigned benefit "in the prescribed manner". This means that the administrator has, vis-à-vis the assignee, obligations in respect of such things as portability and option statements. Those things cannot be done unless the administrator knows what the assignee's entitlement is, but that cannot be known because the member is not yet dead.

[102] In short, CTV says, the scheme of the PBSA is to require an immediate division on assignment but that is impossible because entitlement to, and valuation of, the pre-retirement death benefit cannot be determined until the member's death. The only pension interests that can be assigned under s. 25(4) are those that are fully ascertainable at the time of the assignment. Pre-retirement death benefits do not fit that requirement so they cannot be assigned under s. 25(4).

[103] On the other hand, as the motion judge pointed out, the language of s. 25(4) is very broad. It enables a member to assign all or any part of the member's "pension benefit, pension [page196] benefit credit or other benefit under the plan" to the member's spouse or former spouse, in the context of the breakdown of a spousal relationship. A pre-retirement death benefit would appear to fit within the meaning of "other benefit under the plan" and, possibly, "pension benefit credit". Further, for the reasons already given, while caution must be used when considering the Stairs decision, there is language in it which supports such an interpretation.

[104] It is readily apparent that this is a very difficult issue. In light of my conclusion that Mr. Filotti did not assign his pre-retirement death benefit to Ms. Vladescu, it is not necessary to decide it and I decline to do so. Its resolution could have an impact on many people beyond the parties to this proceeding. In my view, it is best to leave this issue for determination in a case in which the outcome depends on it and where the record is far more complete.

Disposition

[105] Accordingly, I would dismiss the appeal with costs to the respondent in the agreed upon amount of $10,000, all inclusive.

Appeal dismissed.

SCHEDULE "A"

Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.)

Note: This version was in force from April 1, 2005 to March 20, 2009.

Definitions

2(1) In this Act,

"survivor", in relation to a member or former member, means

(a) if there is no person described in paragraph (b), the spouse of the member or former member at the time of the member's or former member's death, or

(b) a person who was the common-law partner of the member or former member at the time of the member's or former member's death[.]

. . . . . [page197]

Administration of Pension Plans

Duties of administrator

7.4(1) The administrator of a pension plan shall, in accordance with this Act and the regulations, administer the pension plan and the pension fund and file the required documents.

Post-Retirement

Meaning of "normal form of the pension benefit"

22(1) In this section, "normal form of the pension benefit" means the form of pension benefit under a pension plan that would be paid to a member at pensionable age were it not for this section.

Joint and survivor pension benefit

(2) A pension benefit that commences to be paid on or after January 1, 1987 to a member or former member of a pension plan who has a spouse or common-law partner at the time the pension benefit commences to be paid shall be in the form of a joint and survivor pension benefit, subject to subsection 25(7).

Reduction by reason of death

(3) A pension benefit described in subsection (2) may be reduced by reason of the death of either spouse or common-law partner, to an amount not less than sixty per cent of the amount of the pension benefit that would have been payable in respect of the member or former member had the death not occurred.

Initial adjustment

(4) The initial amount of a pension benefit described in subsection (2) may be adjusted, provided that the actuarial present value of that pension benefit is not less than the actuarial present value of the normal form of the pension benefit.

Other forms of pension benefit

(5) Notwithstanding subsections (2) to (4), a pension plan shall provide that, in respect of a pension benefit that commences to be paid on or after January 1, 1987, a member or former member may elect to receive

(a) the normal form of the pension benefit, or

(b) the pension benefit in any other form provided for under the terms of the plan,

except that, where the member or former member has a spouse or common-law partner, an election as a result of which the pension benefit would reduce on the death of the member or former member, where the member or former member predeceases the spouse or common-law partner, to less than sixty per cent of the amount payable when both were alive, may not be made without the spouse's or common-law partner's written agreement, in prescribed form and deposited with the administrator of the plan. [page198]

Pre-retirement Death Benefit

If member dies before eligible for early retirement

23(1) If a member or former member of a pension plan who is entitled to a deferred pension benefit pursuant to subsection 17(1) (or, in the case of a member, would be so entitled if the member ceased membership in the plan) dies before becoming eligible to receive an immediate pension benefit in accordance with subsection 16(2), the survivor, if any, is entitled to that portion of the pension benefit credit, calculated in accordance with section 21, to which the member or former member would have been entitled on the day of death if the member or former member had terminated employment on that day and had not died, that is attributable to the member's or former member's membership in the plan after December 31, 1986.

Alternative

(2) A pension plan may provide for a survivor, as an alternative to what is provided by subsection (1), an immediate pension benefit equal to or greater than what is provided by subsection (1).

If member eligible for retirement dies

(3) A member or former member of a pension plan who is entitled to a deferred pension benefit pursuant to subsection 17(1) (or, in the case of a member, would be so entitled if the member ceased membership in the plan) and dies before commencement of payment of that pension benefit but after becoming eligible to receive an immediate pension benefit in accordance with subsection 16(2) is deemed

(a) to have retired for purposes of the survivor benefit; and

(b) to have been entitled to the joint and survivor pension benefit payable pursuant to section 22, without regard to subsection (5) thereof, in respect of that deferred pension benefit.

Eligibility of survivor

(4) The survivor of the member or former member described in subsection (3) is entitled to the pension benefit credit to which the member or former member would have been entitled on the day of death if the member or former member had terminated employment on that day and had not died, if the credit in whole or in part results from a defined contribution plan and is attributable to the member's or former member's membership in the plan after December 31, 1986.

Surrender of pension benefit or pension benefit credit

(5) A pension plan may provide that a survivor may, after the death of a member or former member, surrender, in writing, the pension benefit or pension benefit credit to which the survivor is entitled under this section and designate a beneficiary who is a dependant, within the meaning of subsection 8500(1) of the Income Tax Regulations, of the survivor, member or former member.

Effect of group life insurance plan

(6) Subject to subsection (7), a defined benefit plan may provide for the reduction of the benefit payable under any of subsections (1) to (3) by an [page199] amount equal to that part of the group life insurance payment that can be considered to have been paid by employer premiums, calculated in a manner satisfactory to the Superintendent, if

(a) in the circumstances described in any of subsections (1) to (3), a survivor is entitled to a payment under a group life insurance plan on the death of the member or former member of the pension plan;

(b) the group life insurance plan is one that is approved by the Superintendent for the purposes of this subsection; and

(c) the group life insurance premiums are paid in whole or in part by the employer.

Limitation

(7) In respect of a reduction referred to in subsection (6),

(a) the actuarial present value of the reduction may not exceed the amount of the payment to which the survivor is entitled under the group life insurance plan; and

(b) in the case of a contributory pension plan, the reduction may not reduce the benefit payable to the survivor to an amount less than the aggregate of the member's required contributions together with interest in accordance with section 19[.]

Distribution of Pension Benefits and Pension Benefit Credits on Divorce, Annulment or Separation

Definition of "provincial property law"

25(1) In this section, "provincial property law" means the law of a province relating to the distribution, pursuant to court order or agreement between them,

(a) of the property of spouses on divorce, annulment or separation; or

(b) of the property of former common-law partners on the breakdown of their common-law partnership.

Application of provincial property law

(2) Subject to this section, pension benefits, pension benefit credits and any other benefits under a pension plan shall, on divorce, annulment, separation or breakdown of common-law partnership, be subject to the applicable provincial property law.

Non-application of this Act

(3) A pension benefit, pension benefit credit or other benefit under a pension plan that is subject to provincial property law pursuant to this section is not subject to the provisions of this Act relating to the valuation or distribution of pension benefits, pension benefit credits or other benefits under a pension plan, as the case may be.

Power to assign to spouse, etc.

(4) Notwithstanding anything in this section or in provincial property law, a member or former member of a pension plan may assign all or part of [page200] that person's pension benefit, pension benefit credit or other benefit under the plan to that person's spouse, former spouse, common-law partner or former common-law partner, effective as of divorce, annulment, separation, or breakdown of the common-law partnership, as the case may be, and in the event of such an assignment the assignee shall, in respect of the assigned portion of the pension benefit, pension benefit credit or other benefit, be deemed for the purpose of this Act, except subsections 21(2) to (6),

(a) to have been a member of that pension plan, and

(b) to have ceased to be a member of that pension plan as of the effective date of the assignment,

but a subsequent spouse or common-law partner of the assignee is not entitled to any pension benefit, pension benefit credit or other benefit under the pension plan in respect of that assigned portion.

Duty of administrator

(5) Where, pursuant to this section, all or part of a pension benefit, pension benefit credit or other benefit under a pension plan of a member or former member is required to be distributed to their spouse, former spouse or former common-law partner under a court order or an agreement between them, the administrator, on receipt of

(a) a written request from either the member or former member or their spouse, former spouse or former common-law partner that all or part of the pension benefit, pension benefit credit or other benefit, as the case may be, be distributed in accordance with the court order or the agreement, and

(b) a copy of the court order or agreement,

shall determine and henceforth administer the pension benefit, pension benefit credit or other benefit, as the case may be, in prescribed manner, in accordance with the court order or agreement. However, in the case of a court order, the administrator shall not administer the pension benefit, pension benefit credit or other benefit in accordance with the court order until all appeals therefrom have been finally determined or the time for appealing has expired.

Notice

(6) On receipt of a request referred to in subsection (5), the administrator shall notify the non-requesting spouse, former spouse or former common-law partner of the request and shall provide that person with a copy of the court order or agreement submitted in support of the request, but this requirement does not apply in respect of a request or an agreement received by the administrator in a form or manner that indicates that it was jointly submitted.

Splitting of joint and survivor pension benefit

(7) A pension plan may provide that, where, pursuant to this section, all or part of a pension benefit of a member or former member is required to be distributed to that person's spouse, former spouse or former common-law partner under a court order or agreement, a joint and survivor pension benefit may be adjusted so that it becomes payable as two separate pensions, [page201] one to the member or former member and the other to that person's spouse, former spouse or former common-law partner, if the aggregate of the actuarial present values of the two pensions is not less than the actuarial present value of the joint and survivor pension benefit.

Limitation

(8) Notwithstanding subsection (2), the aggregate of

(a) the actuarial present value of the pension benefit or other benefit paid to the member or former member, and

(b) the actuarial present value of the pension benefit or other benefit paid to the spouse, former spouse or former common-law partner of the member or former member

pursuant to this section shall be not greater than the actuarial present value of the pension benefit or other benefit, as the case may be, that would have been payable to the member or former member had the divorce, annulment, separation or breakdown not occurred.

Portability of Pension Benefit Credits and Purchase of Life Annuities

If member not yet eligible to retire

26(1) If a member, before becoming eligible to receive an immediate pension benefit pursuant to subsection 16(2), ceases to be a member of a pension plan or dies, the member or the survivor, as the case may be, is entitled

(a) to transfer the member's pension benefit credit or the survivor's pension benefit credit, whichever is applicable, to another pension plan, if that other plan permits,

(b) to transfer the member's pension benefit credit or the survivor's pension benefit credit, whichever is applicable, to a retirement savings plan of the prescribed kind for the member or survivor, as the case may be, or

(c) to use the member's pension benefit credit or the survivor's pension benefit credit, whichever is applicable, to purchase an immediate or deferred life annuity of the prescribed kind for the member or survivor, as the case may be,

if the member or the survivor notifies the administrator of that desire, in prescribed form and within ninety days after the cessation of membership or the member's death, as the case may be (or, where the Superintendent allows a longer period under paragraph 28(1)(d), within sixty days after the administrator has given the written statement pursuant to that paragraph), and the administrator shall forthwith take the necessary action to give effect to any such notification.

General

Void agreements

36(1) Where any provision of this Act or the regulations requires an amount to be withheld, deducted, paid or credited, any agreement or arrangement by the person on whom the requirement is imposed not to withhold, deduct, pay or credit that amount is void. [page202]

Idem

(2) Any agreement or arrangement to assign, charge, anticipate or give as security

(a) any benefit provided under a pension plan, or

(b) any money withdrawn from a pension fund pursuant to section 26

is void.

Exception

(3) Subsection (2) does not apply to prevent the assignment of an interest in a pension benefit, or in a life-annuity of the prescribed kind resulting from a transfer or purchase pursuant to section 26, where the assignment

(a) is ordered by a court pursuant to provincial property law (within the meaning of subsection 25(1)); or

(b) is made under subsection 25(4) pursuant to a written agreement[.]

Notes

[^1]: In 2011, CTV Inc. amalgamated with CTVglobemedia Inc. and later changed its name to Bell Media Inc. In these reasons, I refer to CTV Inc. and CTVglobemedia Inc. collectively as "CTV".

[^2]: Provided that the spouse did not waive entitlement to a survivor pension prior to the member's retirement.

[^3]: CWB later became Morneau Sobeco and is currently known as Morneau Shepell.

[^4]: Mr. Filotti had incorrectly inserted 2005 as the year of his marriage. CTV later discovered that Mr. Filotti married Ms. Garanovscaia on April 18, 2004, and they had not lived together in a common law relationship before their marriage.