Court of Appeal for Ontario

Date: 2017-07-10

Docket: C61509

Judges: MacPherson, Cronk and Benotto JJ.A.

Between

Sylvia Bell Appellant

and

Ontario Power Generation Inc. Respondent

Counsel

Kyle Armagon, for the appellant

Frank Cesario and Stephanie Kalinowski, for the respondent

Heard

July 5, 2017

On Appeal

On appeal from the judgment of Justice John McCarthy of the Superior Court of Justice, dated November 25, 2015.

Reasons for Decision

[1] At issue in this appeal is the nature of the relationship between the appellant and Michael Shestowsky in the three years before his retirement from the respondent's employ.

[2] Mr. Shestowsky was an employee of the respondent. He retired in February 2003 and received a pension until his death in May 2011. The pension was calculated in accordance with his representation that he did not have an eligible spouse.

[3] After Mr. Shestowsky's death, the appellant claimed an entitlement to survivor pension benefits on the basis that she was a "spouse" pursuant to the Pension Benefits Act, R.S.O. 1990, c. P.8, s. 1(1), which defines "spouse" as a person who, at the date of retirement, has been "living together" with the employee "in a conjugal relationship" for at least three years.

[4] The trial judge dismissed the appellant's claim having concluded that she was not living together with Mr. Shestowsky for three years before his retirement.

[5] She appeals on numerous grounds, including on the basis that the trial judge erred by disbelieving the uncontradicted evidence that a flood had destroyed cards and photos that supported her claim and by finding her evidence and that of her daughter and friends unreliable.

[6] The appellant does not identify any error of fact or misapprehension of the evidence. The issues raised challenge findings of fact, which are amply supported by the evidence and accorded deference from this court.

[7] The appellant further alleges that the trial judge misapplied the law with respect to the nature of a conjugal relationship. She says he erred in: (1) relying on a cohabitation agreement signed by the parties in 2002; (2) focusing on the subjective intent of Mr. Shestowsky; and (3) relying on Mr. Shestowsky's pension election form. The appellant submits that, by doing so, the trial judge misapplied the law set out in M. v. H., [1999] 2 S.C.R. 3, which held that the elements to consider as generally accepted characteristics of a conjugal relationship may be present to varying degrees and are not all necessary. The approach must be flexible, and subjective intent is not required.

[8] The trial judge's reasons, read as a whole, disclose a consideration of multiple factors which, taken together, led him to conclude that the appellant and the deceased were not living together in a conjugal relationship for the three years before the deceased's retirement. The trial judge used the non-exhaustive criteria set out in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), as a guideline. Consistent with the jurisprudence, which confirms an emphasis on the objective, contemporaneous evidence, he relied on the following facts:

• The cohabitation agreement signed by the parties in September 2002 stating that the parties "intend to commence cohabiting"[1];

• Mr. Shestowsky's change of address notifications in September 2002;

• The respondent's letter of December 17, 2002, advising Mr. Shestowsky that his pension records showed he had no eligible spouse and inviting him to contact the respondent if this information was not correct;

• The pension election form signed by Mr. Shestowsky on January 15, 2003, confirming that he had no eligible spouse. By making this election, Mr. Shestowsky confirmed that he knew the definition of eligible spouse, and his pension entitlement was calculated at a higher rate than if he identified an eligible spouse;

• The letter sent by the respondent to Mr. Shestowsky on January 16, 2003 confirming the election;

• Mr. Shestowsky received pension benefits until his death and never sought to amend his election – despite the fact that, in 2005, he inquired about changing his designation to include an eligible spouse. He was provided with the appropriate procedure to follow but did not do so; and

• The income tax returns filed by both the appellant and Mr. Shestowsky, which indicated "divorced" until 2002, when it converted to "common law".

[9] It was open to the trial judge to rely on this evidence. It fully supported his conclusion that the appellant was not an eligible spouse for the purpose of the Act or the pension plan administered by the respondent.

[10] We therefore conclude that the appeal must be dismissed. In light of this conclusion, it is not necessary to consider the appellant's submissions with respect to the trial judge's alternative finding under s. 45 of the Act.

[11] The appeal is dismissed with costs payable to the respondent in the amount of $10,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.

Footnote

[1] The terms of the cohabitation agreement also provide for a release of the appellant's claims to Mr. Shestowsky's pension entitlements.