Court of Appeal for Ontario

Citation: Welsh v. Ashley, 2015 ONCA 297

Date: 20150430

Docket: C59466

Juriansz, MacFarland and Lauwers JJ.A.

Between

Robin Welsh

Applicant

(Appellant)

and

Michael Ashley, Michele Ashley and Ontario Ironworkers/Rodmen Benefit Administrators Corporation

Respondents

(Respondents)

Counsel:

Josephine Stark, for the appellant

Jason P. Howie, for the respondents Michael Ashley and Michele Ashley

Heard and released orally: April 24, 2015

On appeal from the judgment of Justice Scott K. Campbell of the Superior Court of Justice, dated September 8, 2014.

ENDORSEMENT

[1] This is an appeal from the decision of the motion judge essentially interpreting the provisions of a Separation Agreement between the appellant and Michael Poisson. The scope of review is palpable and overriding error or error in law.

[2] The Separation Agreement clearly distinguished between what the appellant was to receive in the event her husband lived and received pension benefits and what she was to receive in the event he died before the pension ever came into pay. The agreement was drafted this way because at the time a spouse was unable to transfer a portion of a pension not yet in pay to a separated spouse. The legislation has since been amended.

[3] Paragraphs 13 through 18 of the Separation Agreement relate to the division of property and the matrimonial home. In consideration of any claim she may have otherwise had to equalization of net family property and any interest she may have had in the matrimonial home she was to share in her husband’s pension benefits. She was to receive a “one half share of all retirement benefits payable to Michael as and when” those benefits were received from the plan.

[4] There is ambiguity in the document as it relates to the payments to be made to the appellant, in the event her husband had lived to receive benefits. However, that ambiguity is irrelevant for present purposes. Michael Poisson died before his pension came into pay. There is a death benefit. Paragraph 16.5 of the Separation Agreement specifically contemplated what was to occur in the event Michael died before he was in receipt of his pension.

[5] In that event the appellant was to be “considered the sole surviving spouse and shall receive all benefits payable to a surviving spouse under the plan”. In our view, the language is clear. The motion judge erred in that he confused the language of the Separation Agreement and did not distinguish between the terms meant to govern when the pension was in pay and those meant to govern in the event Mr. Poisson died before he ever received his pension.

[6] It is of no consequence that at a point in the past Mr. Poisson changed his beneficiary designation from the appellant to his children. First, the appellant never agreed to the change by delivering a written waiver as was required. Second, the appellant and Mr. Poisson reconciled after that change and entered into a Separation Agreement that continued to govern their relationship until the time of his death.

[7] In our view, the motion judge erred in law in finding a conflict between s. 48(3) and s. 48(13) of the Pension Benefit Act. In our view, there is no conflict. Section 48(13) clearly gives a statutory priority to the provisions of a domestic contract such as the Separation Agreement.

[8] The appeal is allowed and in view of our reasons, the cross-appeal is dismissed.

[9] Costs to the appellant are fixed in the sum of $7,500 inclusive of disbursements and HST.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“P. Lauwers J.A.”