COURT FILE NO.: FC-16-51568-00
DATE: 20201019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mariola Langeman
Applicant
– and –
Craig Wesley Langeman
Respondent
James Singer, for the Applicant
Self-represented
HEARD: October 14, 2020
ruling on motion
MACPHERSON J.:
Relief Requested
[1] The Applicant brings an urgent motion, on the basis of financial hardship, requesting an order ‘assigning’ or ‘transferring’ to the Applicant the amount of $59,953 from the Respondent’s RRSP LIRA # 2929750 to meet the Respondent’s spousal support obligation to her.
Background
[2] On May 3, 2019 Sutherland J. made a temporary order that the Respondent pay to the Applicant $8,000 per month in spousal support.
[3] Further, pursuant to the aforementioned order, Sutherland J. directed the Canadian Imperial Bank of Commerce (hereinafter “CIBC”) to satisfy the spousal support obligation by making payments out of the Respondent’s RRSP account # 2929735. The RRSP account is now exhausted. It was exhausted in or about August 2020.
[4] The Applicant requests an order to permit her to have the spousal support obligation satisfied out of another of the Respondent’s CIBC accounts, his RRSP LIRA # 2929750.
[5] It is noteworthy that the Financial Services Regulatory Authority of Ontario (hereinafter “FRSA”) was provided notice of this motion but did not file materials and did not participate in the motion.
Analysis
[6] Pursuant to section 34 (1) (c) of the Family Law Act, R.S.O. 1990 c F.3, the court has the authority to make an interim or final order requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years. Accordingly, pursuant to the Family Law Act, when dealing with support, the court has jurisdiction to transfer or vest property in the dependant spouse to meet a support obligation.
[7] The temporary order of Sutherland J. dated May 3, 2019 was made under the Divorce Act, R.S.C, 1985, c 3 (2nd Supp.). There is no similar provision under the Divorce Act.
[8] Rule 26 of the Family Law Rules, O. Reg. 114/99, as amended, sets out mechanisms for the enforcement of a support order under the Family Law Act and under the Divorce Act. The mechanisms include seizure and sale, garnishment, and registration under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.
[9] Mr. Langeman’s RRSP LIRA # 2929750 is a locked-in registered retirement savings plan.
[10] Mr. Langeman’s RRSP LIRA # 2929750 is not currently ‘in pay’. In other words, Mr. Langeman has not unlocked his LIRA and he is not currently receiving any money from it.
[11] The RRSP LIRA # 2929750 is subject to the Pension Benefits Act, R.S.O. 1990, c P.8, as amended, which contains statutory restrictions in connection with locked-in RRSP accounts and pension plans.
[12] Section 65 (1) of the Pension Benefits Act states that every transaction that purports to assign, charge, anticipate or give as security money payable under a pension plan is void.
[13] Section 65 (2) of the Pension Benefits Act states that:
(2) Every transaction that purports to assign, charge, anticipate or give as security money transferred from a pension fund in accordance with the following provisions is void:
0.1 Section 39.1 (variable benefits).
0.2 Subsection 39.1.1 (7) (spouse’s right to transfer entitlement).
Section 42 (transfer).
Section 43 (purchase of pension).
2.1 Section 43.1 (purchase of pension, single employer pension plan).
Clause 48 (1) (b) (pre-retirement death benefit).
Section 67.3 (transfer of a lump sum for certain family law purposes).
[14] There are exceptions to the general prohibitions aforementioned. Section 65 (3) of the Pension Benefits Act states:
Exemptions
(3) Subsections (1) and (2) do not apply to prevent the assignment, by an order under the Family Law Act, a family arbitration award or a domestic contract, of an interest in money payable under a pension plan or an interest in money payable as a result of a purchase or transfer under the following provisions:
0.1 Section 39.1 (variable benefits).
0.2 Subsection 39.1.1 (7) (spouse’s right to transfer entitlement).
Section 42 (transfer).
Section 43 (purchase of pension).
2.1 Section 43.1 (purchase of pension, single employer pension plan).
Clause 48 (1) (b) (pre-retirement death benefit).
Section 67.3 (transfer of a lump sum for certain family law purposes).
[15] It is noteworthy that the order of Sutherland J. is not a lump sum payment of support. Rather, it is a temporary and periodic order for support.
[16] The Applicant requests an order converting the periodic support payments to a lump sum order. Specifically, she requests a lump sum order of support for the period September 1, 2020 – September 15, 2021. I am not prepared to do so for the reasons that follow. The Respondent states that he is no longer employed. I note that he has not brought a motion to vary the temporary spousal support award. I do note that the final order for spousal support may be very different following a trial in the matter. Even if I was inclined to amend the temporary order to a lump sum order, which I am not, that would not assist the Applicant in obtaining the relief she requests.
[17] In Trick v. Trick, 2006 CanLII 22926 (ON CA), [2006] O.J. No. 2737, the Court of Appeal states, at paragraph 44,
First, the order in this case, to the extent it otherwise comes within s. 65 (3) at all, is not an order made under the FLA. Rather, it was made under the DA. Accordingly, s. 65 (3) cannot provide relief from the general prohibition against pension assignment.
[18] At paragraph 47 the Court goes on to state:
Fourth, s. 65 (3) exempts only the assignment of pensions. An assignment of a pension is a transfer of rights to the pension. The Act continues to void all other transactions such as those that purport to charge, anticipate or give as security money payable under a pension plan. Such transactions are akin to enforcement under section 66 of the PBA and continue to be prohibited. These continued prohibitions reflect the legislature’s continuing objective to preserve pensions.
[19] And, finally, at paragraph 53 the Court states:
In this case, the respondent is not seeking an assignment of the appellant’s pension for equalization purposes or even for the purpose of lump sum support. Rather, she is seeking to execute, seize or garnishee 100 percent of the appellant’s pension to enforce the appellant’s outstanding obligations. In my view, she is precluded from doing so at law by s. 66 (4).
[20] In addition to the restrictions to assign, charge, anticipate or give as security money payable under a pension plan, the Pension Benefits Act restricts the amount eligible for garnishment when a pension or LIRA is ‘in pay’. Section 66 (1) of the Pension Benefits Act states:
Money payable under a pension plan is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (1).
[21] Section 66 (2) of the Pension Benefits Act states:
(2) Money transferred from a pension fund to a prescribed retirement savings arrangement or for the purchase of a life annuity under section 39.1, 42, 43, 43.1, 48, 67.3, 67.4 or 67.8 or subsection 73 (2) is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (2); 2009, c. 11, s. 47 (1); 2015, c. 20, Sched. 34, s. 4 (1); 2017, c. 8, Sched. 27, s. 11 (1); 2018, c. 17, Sched. 33, s. 7 (1).
[22] Section 66 (3) of the Pension Benefits Act states:
(3) Money payable from a prescribed retirement savings arrangement or from a life annuity purchased in accordance with section 39.1, 42, 43, 43.1, 48, 67.3, 67.4 or 67.8 or subsection 73 (2) is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (3); 2009, c. 11, s. 47 (2); 2015, c. 20, Sched. 34, s. 4 (2); 2017, c. 8, Sched. 27, s. 11 (1); 2018, c. 17, Sched. 33, s. 7 (2).
[23] In Trick the Court states at paragraphs 30 and 31:
… The legislation distinguishes between the protection given to pension benefits which a member will receive in the future and protection for pension moneys actually being received, i.e. a pension in pay.…
However, preserving a member’s interest in his or her pension can conflict with other important objectives reflected in family law legislation. From a property perspective, the value of the pension accumulated during marriage is part of the spouses’ net family property subject to equalization. From a support perspective, a pension in pay is an income source relevant to the ongoing needs of the family members. Thus, pension income may be a source of revenue to enforce support and equalization obligations.
[24] Section 66 (4) of the Pension Benefits Act states:
Order for support
(4) Despite subsection (1), payments under a pension plan or that result from a purchase or transfer under the following provisions are subject to execution, seizure or attachment in satisfaction of an order for support enforceable in Ontario to a maximum of one-half the money payable:
0.1 Section 39.1 (variable benefits).
0.2 Subsection 39.1.1 (7) (spouse’s right to transfer entitlement).
Section 42 (transfer).
Section 43 (purchase of pension).
2.1 Section 43.1 (purchase of pension, single employer pension plan).
Clause 48 (1) (b) (pre-retirement death benefit).
Section 67.3 (transfer of a lump sum for certain family law purposes).
[25] Accordingly, when a recipient begins to receive payments under a pension plan or LIRA, the amount subject to execution, seizure or attachment in satisfaction of an order for support enforceable in Ontario is capped at a maximum of one-half the money payable. There is no discretion conveyed to the court to increase or decrease the cap.
[26] There is no similar provision for that would permit garnishment for an unlocked LIRA or pension when there are no payments being made.
[27] Accordingly, there is no statutory authority that permits the court to make an order transferring any portion of the Respondent’s unlocked LIRA to the Applicant for the purpose of satisfying the temporary and periodic spousal support order made pursuant to the Divorce Act.
Order
The motion is dismissed.
Each party shall assume their own costs of this motion.
Justice G. A. MacPherson
Released: October 19, 2020