ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-390060
DATE: 20120720

BETWEEN:

FLORINA VLADESCU Plaintiff (Moving Party) – and – CTV GLOBE MEDIA INC. AND CTV INC. Defendants (Responding Parties)

Richard W. Greene and Michael Zalev, for the Plaintiff (Moving Party)

Stephanie J. Kalinowski and Frank Cesario, for the Defendants (Responding Parties)

HEARD: March 19 and 22, 2012

J.s. o’neill

REASONS ON MOTION

[ 1 ] Part A: Introduction

[ 2 ] On October 20, 2011 the Plaintiff filed a Summary Judgment Motion with the court seeking the following relief:

Summary judgment requiring the Defendants to pay the Plaintiff the pre-retirement death benefit payable under the Defined Benefit Pension Plan for Employees of CTV Inc. (OFSI registration number 55189) (the “Pension Plan”) as a result of the death of Gabriel Filloti (“Mr. Filloti”), together with interest from the date of Mr. Filotti’s death.

An Order requiring the Defendants to pay the Plaintiff’s costs of this motion and the Action.

Such Further and other relief as counsel may be advised and this Honourable Court may permit.

[ 3 ] The motion was argued before me in Toronto on March 19 and 22, 2012. At the conclusion of oral argument, I requested further written submissions on a narrow point and these submissions were received on April 19 and April 20, 2012. I required further written submission which I received on June 27, 2012. At the conclusion of the motion, I reserved my decision pending the release of written submissions, and pending the release of my written reasons.

[ 4 ] Part B: Overview

[ 5 ] The Plaintiff, Florina Vladescu (“Florina” and Gabriel Filotti (“Gabriel”) started living together in 1993, were married in 1998, and separated in 2001. Gabriel built up a pension by working as a cameraman for the Defendants, CTVGLOBEMEDIA Inc. and CTV Inc. (collectively referred to as “CTV”). As part of Gabriel and Florina’s matrimonial settlement, Florina agreed not to seek spousal support from Gabriel and to assume responsibility for his share of certain joint debts. In return, Gabriel agreed that Florina would receive the survivor benefits from his pension. (The term “survivor benefits” is not a defined term under the Pension Benefits Standards Act , but the parties agree that it is “a generic term used to refer to a monthly survivor pension that is payable when a retired member dies, or a pre-retirement death benefit, or both, depending on the context.”)

[ 6 ] In 2004, Gabriel married Natalia Garanovscaia (“Natalia”). They separated in or around 2005/2006, but they never divorced.

[ 7 ] Gabriel died in 2009. CTV has advised that the survivor benefits from Gabriel’s pension have a value of approximately $445,000.

[ 8 ] The Defendants administer the Pension Plan at issue, and their position is that the Separation Agreement entered into by Florina and Gabriel did not displace the pension entitlement of Gabriel’s subsequent wife. As outlined in the Defendants’ Factum:

“Mr. Filotti had a spouse when he died, and she is automatically entitled to the benefits from his pension. The Separation Agreement is not sufficiently clear and unambiguous to oust the statutory priority of the spouse.”

[ 9 ] Part C: Background Facts

[ 10 ] The background facts are outlined in each of the parties factums and I reproduce, in part, portions outlining the important facts:

[ 11 ] i. Pension Administrator

[ 12 ] CTV Inc. was the administrator of the Defined Benefit Pension Plan for Employees of CTV Inc. (the “Plan”). The Plan is registered under the federal Pension Benefits Standards Act (the “ PBSA ”) and the federal Income Tax Act (the “ITA”). When Administering the Plan, CTV must comply with the PBSA and ITA.

[ 13 ] Gabriel Filotti was a member of the Plan and accrued benefits under the Plan from October 1, 1983 until his death on February 10, 2009.

[ 14 ] ii. The Matrimonial Litigation

[ 15 ] Florina issued her petition for divorce in September 10, 2001 following the separation of March 15, 2001. The divorce judgment was granted on February 17, 2003.

[ 16 ] On September 20, 2001, a temporary ordering was made requiring Gabriel to pay Florina $2000.00 in monthly support, and requiring him to reinstate her health insurance that he had earlier cancelled.

[ 17 ] A defence medical was undertaken on January 23, 2002 and Dr. Jeffries concluded that Florina was “seriously disabled with severe depression and agitation”, and that she had “what used to be called ‘agitated’ depression’ but that was better described as involutional melancholia...This particular syndrome is classically associated with some stressor and in this case the clear precipitant is Gabriel’s decision to abandon her.”

[ 18 ] iii. Gabriel and Florina Reach an Agreement in Principle

[ 19 ] At paragraph 17 of her factum, the Plaintiff summarized the Agreement in Principle reached by the parties, which I reproduce in full:

On February 28, 2002, Gabriel and Florina attended a settlement meeting with their lawyers. They reached a non-binding agreement in principle whereby:

(a) Florina would release her spousal support rights;

(b) Gabriel would pay Florina $200 a month for 2 years from the date of their divorce to compensate her for the loss of the extended medical, dental, and drug coverage that she had previously received through his employment;

(c) Gabriel would irrevocably designate Florina as the beneficiary of a $70,000 life insurance policy on his life;

(d) Florina would retain sole ownership of her home in Toronto;

(e) Florina would assume responsibility for Gabriel’s share of a $20,000 joint debt; this was the second time that Florina had to pay for debts that Gabriel incurred. During the marriage, Florina paid off approximately $7,000 of Gabriel’s debts.

(f) Florina would receive the survivor benefits from Gabriel’s pension.

[ 20 ] iv. Gabriel and Florina Sign a Separation Agreement

[ 21 ] Following the agreement in principle, additional negotiations took place, and on August 27, 2002 Gabriel and Florina signed a separation agreement. The major terms of the separation agreement are outlined at paragraph 19 of the Plaintiff’s Factum:

After the settlement meeting, Florina and Gabriel’s lawyers engaged in further negotiations over the wording of a final Separation Agreement. Finally, on August 27, 2002 Gabriel and Florina signed a Separation Agreement (the “Separation Agreement”) whereby:

(a) Florina released her spousal support rights;

(b) Gabriel agreed to pay Florina $200 a month to compensate for the loss of the extended medical, dental, and drug coverage that she had previously received through his employment;

(c) Gabriel irrevocable designated Florina as the beneficiary of a $120,000 life insurance policy on his life;

(d) Florina retained sole ownership of her home in Toronto;

(e) Florina assumed responsibility for Gabriel’s share of a $30,000 joint debt; and

(f) Florina was to receive the survivor benefits from Gabriel’s pension.

[ 22 ] v . Separation Clauses Dealing with Gabriel’s Pension

[ 23 ] In their factum, the Defendants’ outlined the major provisions of the separation agreement dealing with Gabriel’s pension. I reproduce in part, the following:

13. HUSBAND’S PENSION

13.1 The husband in entitled to a pension pursuant to the Defined Benefit Pension Plan for Employees of CTV Inc., Plan Registration Number PBSA 55189.

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 paragraphs 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.

[ 24 ] Schedule “C” to the separation agreement, referred to in paragraph 13.4, refers to an “Irrevocable Direction” from Mr. Filotti to the Administrator of the Plan. It states:

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.

[ 25 ] vi . Communications in 2002 and 2003 Regarding the Pension

[ 26 ] I reproduce below portions of the Defendants’ Factum in which they set out important communications regarding the pension:

15. On July 2, 2002, CTV received a beneficiary designation from Mr. Filotti, designating the Plaintiff as beneficiary of death benefits not payable to a spouse.

16. CTV first received the Schedule “C” document from the Plaintiff’s counsel on November 5, 2002. It was sent along with a Schedule “B” which dealt with deductions from Mr. Filotti’s salary in relation to life insurance. The cover letter from counsel made no reference to the Schedule “C” or the pension.

17. CTV’s view upon receiving Schedule “C” was that it was a beneficiary designation rather than an assignment because it only contained a direction to pay death benefits and no separation agreement or court order was provided, both of which are consistent with a beneficiary designation and inconsistent with an assignment. CTV took steps to advise Plaintiff’s counsel of this.

18. Following a call from CTV, Plaintiff’s counsel advised CTV on November 20 that the November 5 letter was sent in error and to disregard it.

19. Sometime between November 20, 2002 and January 15, 2003, CTV received Schedule “C” again from the Plaintiff’s counsel. This time, the cover letter referred to Schedule “C” and described it as “directing you to pay all survivor benefits pursuant to the above pension to Florina Vladescu in the event of [Mr. Filotti’s] death”. No separation agreement or court order was provided.

[ 27 ] vii . New Spousal Declaration and Communications By CTV to the Parties

[ 28 ] Gabriel married Natalia Garanovscaia on April 18, 2004. Gabriel submitted a Personal Information Change Form to CTV listing Ms. Garanovscaia as his current spouse and seeking to designate her as primary beneficiary of death benefits not payable to a spouse. CTV contacted Mr. Filotti for clarification for the form, given the previous documentation forwarded to CTV in favour of the Plaintiff. No clarification was received and CTV maintained the Plaintiff on record as the designated beneficiary.

[ 29 ] On February 22, 2006 Mr. Filotti provided CTV with a Declaration of Spousal Status naming Natalia Garanovscaia as his spouse as of April 18, 2005. A further declaration was provided certifying that “no interest in my pension entitlement...has been assigned or granted by an agreement or court order.”

[ 30 ] On April 25, 2006, after CTV had conferred with its external pension administrations services provider, the Senior Pension Administrator noted that “Wife #1 [i.e. the Plaintiff] is not the spouse, so only if the current spouse dies would she get anything from the plan”.

[ 31 ] Mr. Filotti provided CTV with a copy of the divorce judgment in early July 2006. Mr. Filotti confirmed to CTV that he knew that Ms. Garanovscaia was entitled to death benefits and that the divorce judgment only required him to ask her to waive her rights “to the best of his ability”.

[ 32 ] I reproduce below, from the Defendants’ Factum, portions of the letter of July 26, 2006 written by CTV to Mr. Filotti and to the Plaintiff setting out its interpretation of the divorce judgment and separation agreement:

We cannot administer sections 13.2 and 13.3. 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 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 to waive her rights to survivor benefits, we understand that your current spouse has not done so. Therefore, the Plain 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.

[ 33 ] There is a dispute between the parties as to whether the Plaintiff received CTV’s letter of July 27, 2006. In paragraph 30 of its factum, CTV stated:

“...the person who sent the letter (Telena Oussoren) confirms that it was sent. Ms. Oussoren’s recollection is corroborated by two things: she kept a scanned copy of the front of the envelope used to mail the letter to the Plaintiff, as was her practice; and she sent an email to Cowan on July 28, 2006 stating “we have written to both Mr. Filotti and to Ms. Vladescu confirming our understanding of the agreement”.

[ 34 ] At paragraph 34 of her factum, the Plaintiff stated:

“CTV has produced what it claims is a scanned copy of the handwritten envelope containing the July 27, 2006 letter to Florina. Although the handwritten address on this document is correct, the document is undated (nowhere does it say that it is from July 28, 2006 as stated in the index to CTV’s Affidavit of Documents), it does not show any postage attached, and it does not indicate what was enclosed in the envelope. The letter also indicates that it was copied to Catherine Foti of CTV, but CTV has not produced any information to indicate that Ms. Foti ever received it.”

[ 35 ] Mr. Filloti died on February 10, 2009. As a result of his death, a pre-retirement death benefit became payable from the Plan. The commuted value of this benefit as calculated by the Plan’s actuaries, is $445,285.47, as of February 20, 2009. CTV’s position on the motion is that the full value of the death benefit, together with accrued interest, is payable to Natalia Garanovscaia. The Plaintiff’s position is that the full value of the death benefit, together with accrued interest is payable to her. Further, in paragraph 35 of her factum, the Plaintiff indicated that had she known about the position that CTV was taking, prior to Mr. Filotti’s death, she immediately would have sought legal advice to take steps to deal with CTV’s position that she would be deprived of the survivor benefits. As outlined in paragraph 35...”she would have been in a far better position to seek clarification on the issue and to seek relief as against Gabriel, including but not limited to an Order requiring him to comply with paragraph 13.4 of the Separation Agreement, which required Gabriel to “sign any documents that may be required by the Pension Administrator” to ensure that Florina would be the sole and exclusive person entitled to the survivor benefits.”

[ 36 ] Part D: Issues To Be Decided

[ 37 ] The issues to be decided on this motion are as follows:

i. Does s. 25(4) of the PBSA permit an assignment of pre-retirement death benefits to a spouse or to a former spouse?

ii. If so, was the wording in the legal documents utilized in this case sufficient to finalize an assignment?

[ 38 ] CTV’s general submissions with respect to the pension entitlement issue are summarized at paragraph 39 of its factum:

(a) the divorce documents have to be read in light of pension law requirements;

(b) the statutory pension regime creates a presumptive entitlement in favour of a surviving spouse for a pension plan member’s death benefits;

(c) in light of that presumption, the specific exception for assignments to previous spouses must be read to require that the assignment be clear and unambiguous in order to be effective; and

(d) the language relied on in this case purporting to be an assignment is not clear and unambiguous and therefore is not an assignment.

[ 39 ] At the conclusion of oral submissions, I requested written submissions on the following point:

Assuming the “assignment” wording is proper, or in the same words as the Stairs separation agreement, can such words nevertheless legally permit 100% of the pre-retirement pension death benefits to be paid in this case to the Plaintiff?

[ 40 ] CTV’s Supplemental or further submission with respect to this point is summarized at paragraph 2 of its Supplemental Factum:

The Defendants submit that the answer to this question is “no” because, even if there is a valid assignment (which there was not in this case), section 25(4) (b) of the PBSA requires that an assignee former spouse must be treated as a former member by the pension plan administrator, and the statutory consequences that flow from that status cannot be applied to a pre-retirement pension death benefit.

[ 41 ] The Plaintiff’s position, both as outlined in her counsel’s oral submissions and through written submissions in answer to the question outlined in my endorsement of March 22, 2012 can be summarized generally as follows:

S. 25(4) of the PBSA provides that a member can assign all or part of his or her pension benefits (including survivor benefits) to a spouse or former spouse, and that any portion of a pension benefit that has been assigned no longer belongs to the member and cannot be claimed by a subsequent spouse.

[ 42 ] This position was expanded upon in the Supplemental Factum forwarded in response to my request for written submissions in relation to the endorsement which I made on March 22, 2012. I reproduce below paragraph 3 from the Plaintiff’s Supplemental Factum:

Florina submits that the answer to this question must be a resounding yes, and that CTV’s position that pre-retirement death benefits cannot be assigned to a spouse or former spouse under the Pension Benefits Standard’s Act (the “ PBSA ”) cannot possibly be correct given that:

(a) Subsection 25(4) of the PBSA specifically states that a “ member or former member of a pension plan may assign all or part of their pension benefit, pension benefit credit or other benefit under the plan to their 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. [emphasis added]

(b) As detailed below, the pre-retirement death benefit provided for by s.23 (1) of the PBSA is part of a member or former member’s pension benefit credit.

(c) If Parliament had intended to prohibit assignments of pre-retirement death benefits from being assigned to spouses and former spouses, surely it would have said so in the PBSA . For example, Parliament could have drafted s.25(4) to say that a “member or former member of a pension plan may assign all or part of their pension benefit, pension benefit credit or other benefit under the plan except for a pre-retirement death benefit to their spouse or former spouse.” The PBSA , however, says nothing of the sort.

[ 43 ] Part E: ANALYSIS AND CONCLUSIONS

[ 44 ] i) Does s. 25(4) of the PBSA permit an assignment of pre-retirement death benefits to a spouse or to a former spouse?

[ 45 ] The Plaintiff relies on the Ontario decision Ontario Teachers’ Pension Plan Board v. Ontario (Superintendent of Financial Services), 2004 Carswell Ont 526 (C.A.) for the proposition that a survivor benefit is property that can be assigned. At para. 61 of this decision, O’Connor A.C.J.O wrote:

The ability of a pension plan member to transfer a vested interest in a pension plan on marriage breakdown makes sense from a policy standpoint. In many cases, a pension will represent a significant portion of the family property available for division as part of the equalization exercise. The capacity to assign pension entitlements, including death benefits, provides flexibility to the parties or to a court in resolving family property issues in an equitable manner that recognizes the economic reality of many families.

[ 46 ] There is at root a major distinction between the PBSA as it existed on March 30, 2009 (the version applicable to Mr. Filotti’s benefits at the time of death) and the PBA , which (until earlier this year – January 1, 2012) did not provide for immediate division but rather had an “if and when” scheme. The Ontario Court of Appeal in the Ontario Teachers’ Pension Plan Board decision, supra, was dealing with the Ontario Pension Benefits Act not the Federal Pension Benefits Standards Act . In this decision the language in the separation agreement reflected this distinction. It stated that “in the event that a death benefit becomes payable under the pension...then the wife will be entitled to an interest in the death benefit calculated as follows”. The calculation included “the total number of years...during which contributions had been made to date of death, times the death benefit payable”.

[ 47 ] In its supplemental factum, in answer to my endorsement question on March 22, 2012, the Defendants stated that an appropriate interpretation of s. 25(4) of the PBSA leads to a conclusion that a pre-retirment death benefit simply cannot be assigned under the Federal Act, even if appropriate and proper wording is used. As outlined in paragraph 99 of its initial factum:

As of the date of Separation Agreement in August 2002 (even if Plaintiff’s counsel had given it to CTV at the time), CTV simply could not have administered the pension provisions as the “assignment” that the Plaintiff now says she wants – there simply would have been no way for CTV to have done the mechanical step required by section 24(5) of the PBSA of treating the Plaintiff as a former member because it would have been impossible to value her interest to allow her to take it elsewhere. This demonstrates that CTV’s interpretation of the documents as a beneficiary designation is the only one that makes sense from a pension law and pension administration standpoint.

[ 48 ] I am not able to agree with the position of the Defendants. S. 18(a) of the PBSA expressly prohibits a person with an interest in the federally regulated pension from assigning any portion of it. S. 36(2) of the PBSA also provides that any attempt to assign any portion of an interest in a pension is automatically void. However, s. 25(4) of the PBSA creates an exception to this general prohibition and allows a person with a interest in a pension to assign “all or part” of it to a spouse or former spouse in the context of the breakdown of a spousal relationship. In this respect, I accept the submissions of the Plaintiff as to the assignability of a pre-retirement death benefit under the PBSA . This position has been reproduced by me and can be found at para. 42 of these reasons.

[ 49 ] If Parliament had intended that a pre-retirement death benefit could not be assigned to a spouse or to a former spouse under the PBSA , it ought to have said so in clear and unambiguous language. But that is not the language that appears from a reading of s. 25(4) of the Act. It is true that Ontario placed a cap on pension assignments (and now on transfers) under the Ontario PBA as noted by the Court of Appeal in the Ontario Teachers’ Pension Board case, supra. But instead of capping the amount of a pension that can be assigned to a spouse or former spouse, Parliament opted to give separating spouses under the regime of the PBSA much greater flexibility by allowing them to assign “all or part” of the pension to a spouse or former spouse without limitation.

[ 50 ] The potential benefits of Parliament’s decision to give separating spouses as much flexibility as possible when dealing with pensions is evident or at least understandable on the facts of this case. I accept the point put by the Plaintiff at paragraph 15 of her Supplementary Legal Submissions which I reproduce in part below:

In particular, Gabriel and Florina agreed that Gabriel would retain the full benefit of his pension while he was alive, and Florina would receive the full benefit of the pension when he died. Had Florina insisted upon spousal support, capital payments, and/or an immediate division of Gabriel’s pension at source instead, he would have had significantly less money for himself during his lifetime. In turn, Gabriel would have had less money to spend on his subsequent spouse, Natalia Garanovscaia (“Natalia”), during their very brief time together. He also would have had less money with which to pay spousal support to her once they separated.

[ 51 ] I further accept the Plaintiff’s submission that a spouse or former spouse’s ability to assign up to 100% of an interest in a pension does not cause any prejudice to a subsequent spouse. Subsection 25(4) specifically states that a subsequent spouse “is not entitled to any pension benefit, pension benefit credit or other benefit under the pension plan in respect of that assigned portion.” Put simply, a subsequent spouse cannot be prejudiced by the loss of something that he or she never had in the first place. As the Ontario Court of Appeal noted in the Ontario Teachers’ Pension Plan Board case, “a subsequent spouse who marries after a valid assignment of a pre-retirement death benefit to a former spouse should not reasonably expect to be receive the already assigned interest.”

[ 52 ] I find that pursuant to s. 25(4) of the PBSA , no cap or default regime has been set up, as under the Ontario PBA , and that rather the effect of a proper assignment of death benefits under the PBSA will always depend upon the specific terms of the parties’ agreement.

[ 53 ] The Defendants position with respect to non-assignability rests considerably on their technical objection that put simply the Plaintiff could not have been assigned 100% or less of the pre-retirement death benefit because it would have been impossible for the pension plan administrator to calculate and administer the assignment under ss. 25(4) and 26 of the PBSA and s. 18(4) of the PBSA Regulations. Accordingly, the Defendants submitted it would make no sense to deem the assignee former spouse to be a former member and to thus entitle that person to the portability and options outlined in s. 28(1) (d) of the PBSA .

[ 54 ] I am not able to accept this argument. When a court order or agreement provides that all or part of a pension benefit or pension benefit credit is to be distributed to a member’s spouse or former spouse, s. 25(5) of the PBSA requires the pension administrator to “determine and henceforth administer the pension benefit, pension credit or other benefit, as the case may be, in prescribed manner, in accordance with the court order or agreement.

[ 55 ] In this regard, I accept the position put by the Plaintiff in her Supplementary Legal Submissions:

27. There is nothing in the PBSA that states that CTV is required to quantify the value of Florina’s interest in the pension in order to “determine and administer” it. Therefore, all CTV had to do to comply with s. 25(5) of the PBSA was to:

(a) Note in its records that if Gabriel died, the entire pre-retirement death benefit from his pension was to be paid to Florina; and

(b) When Gabriel died, pay the pre-retirement death benefit to Florina.

[ 56 ] In short, if Florina had asked the Defendants to transfer the pre-retirement death benefit to another pension plan, registered savings plans, or deferred life annuity (and she did not do so), all the Defendants would have had to do to comply with their obligations under s. 26(1) of the PBSA would have been to:

(a) Record the fact that Florina made this request under s. 26(1) within the necessary time frame; and

(b) Make the necessary transfer promptly upon Gabriel’s death.

[ 57 ] ii. If s. 25(4) of the PBSA permits an assignment of a pre-retirement death benefit, was the wording in the legal documents utilized in this case sufficient to finalize the assignment?

[ 58 ] The Defendant’s position on this issue is that “the language relied on in this case purporting to be an assignment is not clear and unambiguous and therefore is not an assignment.” At para. 63 of the factum, the Defendants stated:

Given the exceptional nature of the assignment permitted in the marriage breakdown context, and the nature of pension legislation, assignments must be clear and unambiguous. A plan administrator cannot be put into the position of having to guess what the parties intended before it subjects the clear rights of one person to those of another. Where an assignment purports to reduce or eliminate the rights of a third party, and particularly a subsequent spouse who is given clear, statutory priority to death benefits payable under a pension plan, it is even more critical that the separation agreement and/or court order purporting to contain the language be clear and ambiguous.

[ 59 ] The Defendants also submitted that the principles of equitable assignment are not applicable in this case as:

i. Equitable assignment addresses a situation where a specific debt is owed by the assignor to the assignee.

ii. Equitable assignments do not apply in the pension law context.

[ 60 ] The Defendants cited the decision Workers Compensation Board v. Lettroy (2006), 2006 25610 (ON CA) , 81 O.R. (3d) 401 (C.A.) where the court stated: “where Parliament has fashioned statutory remedies and placed limitations on those remedies with great specificity, I think it is the proper role of the court to apply and maintain those remedies, including their limitations.”

[ 61 ] The Plaintiff submitted that the separation agreement, the irrevocable direction, and the divorce judgment assigned the survivor benefits to Florina on the basis that “no form of words is required for an equitable assignment; the only thing that is necessary is to make the meaning plain.” This statement was reproduced from Halsbury’s Laws of England and is referred to in the decision Lawson Graphics Pacific Limited v. Simpson , 1997 Carswell B.C. 61 (S.C.) . I reproduce below, from paragraph 58 of the Plaintiff’s Factum, portions of the Lawson case:

No form of words is required for an equitable assignment; the only thing that is necessary is to make the meaning plain. The assignment may be by word of mouth, unless in the particular case writing is required by law, and no particular form of words is necessary so long as the words clearly show an intention that the assignee is to have the benefit of the chose in action. The assignment may be addressed either to the debtor or to the assignee. An agreement amounting to an equitable assignment may be express and written or may even be made out from a course of dealing between the parties.

An engagement or direction to pay a sum of money out of a specified debt or fund constitutes an equitable assignment, though not of the whole debt or fund; but it is necessary to specify the debt or fund. A mere charge on a debt or fund also operates as a partial equitable assignment.

It is immaterial that the amount of the debt assigned is not ascertained at the date of the assignment.

[ 62 ] I am not able to accept the Plaintiff’s position that having regard to the wording of s. 25(4) (b) of the PBSA , as well as the separation and divorce documentation referred to in these reasons, that 100% or all of the pre-retirement death benefits were effectively assigned to the Plaintiff. An assignment is inherently irrevocable because the interest is gone, that is, once the interest is transferred from the assignor to the assignee, the assignor generally cannot take it back. Yet that is not what paragraph 13.5 of the separation agreement provided. That paragraph specifically contemplated that Mr. Filotti might cohabit with another person or remarry. Accordingly, the paragraph provided that “...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.”

[ 63 ] This paragraph clearly contemplated that if Mr. Filotti was to remarry, and that if his spouse did not execute a marriage contract, and release any rights or claims to the pre-retirement death benefit, such benefit would flow or be payable to his spouse at the date of death, provided that she met the definition provided under the PBSA for payment of such benefit.

[ 64 ] In other words, while section 13 of the Separation Agreement and the schedule “C” document appear to maintain that the Plaintiff is solely entitled to full survivor benefits on the death of Mr. Filotti, s. 13.5 of the agreement itself contemplates or acknowledges that a full or complete transfer or irrevocable assignment might not be possible in the event of a future marriage.

[ 65 ] Part F: Conclusion

[ 66 ] I accept the position of the Defendants that having regard to the wording utilized in the legal documentation herein:

• The Statutory Pension regime creates a presumptive entitlement in favour of a surviving spouse for a pension plan member’s death benefits

• In light of that presumption, the specific exception for assignments to previous spouses must be read to require that the assignment be clear and unambiguous in order to be effective

• The language relied on this case purporting to be an assignment is not clear and unambiguous and therefore is not an assignment

• Schedule C merely “authorizes” the Plan’s Administrator to pay “survivor benefits to the Plaintiff”

• Schedule C uses the language of “direction”, which is not an assignment of an interest.

[ 67 ] If the Separation Agreement and supporting documents constituted an effective assignment in favour of the Plaintiff, it would not make sense to acknowledge that a subsequent spouse would have a right to the death benefit that would trump or override the Plaintiff’s rights, because an “assignment” to the Plaintiff would transfer the rights to the death benefit to her.

[ 68 ] Further, I accept the Defendants position as outlined in paragraph 91 of its factum that in effect, paragraph 13.5 is “consistent with a beneficiary designation” because it was possible that Mr. Filotti could marry a subsequent spouse who would be entitled to receive the death benefits in priority to a designed beneficiary.”

[ 69 ] For these reasons, an order is herein made dismissing the Plaintiff’s action, dismissing the Plaintiff’s Summary Judgement Motion and requiring the Defendants to pay to Natalia Garanovscaia the pre-retirement death benefit payable under the defined Benefit Pension Plan for Employees of CTV Inc, together with interest from the date of Mr. Filotti’s death.

[ 70 ] Part G: The Issue of Costs

[ 71 ] This action and the Summary Judgement Motion has required the court to examine an area of pension law, particularly Federal pension law, that had few applicable precedents. In addition, subject to variation or confirmation on appeal, my reasons herein have provided direction to the Defendants and clarification with respect to their role in relation to payment of the monies in question, pending their administration and control of these monies. This decision, subject to confirmation or variation on appeal, may be applicable to other employees of the Defendants covered by the same pension plan. For all of these reasons, no order is made as to costs.

[ 72 ] Order accordingly.

J.S. O’Neill

Released: July 20, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: FLORINA VLADESCU Plaintiff – and – CTV GLOBE MEDIA INC. AND CTV INC. Defendants REASONS ON MOTION Justice J.S. O’Neill

Released: July 20, 2012