COURT FILE NO.: FS-21-22775
DATE: 20221104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Yolanda Kerry-Ann Bartley
Applicant
– and –
Kavan Carlington Brown
Respondent
Reesa Heft and Gila Gabay, for the Applicant
Self-represented
HEARD: in writing November 1, 2022
J. steele j.
[1] This is an uncontested trial heard in writing. The respondent, Kavan Carlington Brown, has not filed his responding materials or any financial disclosure.
[2] The applicant, Yolanda Kerry-Ann Bartley, seeks a divorce, an order for the equalization of the parties’ net family property payable from the respondent’s pension, an order that the parties’ separation date be confirmed as December 9, 2018, and costs.
[3] There is nothing complicated here. However, Ms. Bartley has had to jump through numerous hoops to get a valuation of Mr. Brown’s pension. She states: “Obtaining the Family Law Value of the Respondent’s pension has been incredibly difficult and costly without the Respondent’s cooperation, as he refuses to participate.”
Background
[4] The parties were married on August 10, 2008. They separated on December 9, 2018. They do not have any children together.
[5] Ms. Bartley is 42 years old and employed as an early childhood educator.
[6] Mr. Brown is 42 years old and was employed as a maintenance worker for the Toronto Transit Commission (“TTC”) during the parties’ marriage.
[7] The parties do not own any property. The most significant assets to equalize are Ms. Bartley’s RRSPs and Mr. Brown’s pension with the TTC.
[8] Through counsel, commencing in June 2020, Ms. Bartley attempted to settle outstanding issues with Mr. Brown. After about a year of trying to negotiate this matter without response or participation by Mr. Brown, Ms. Bartley commenced this application on April 14, 2021. The respondent was served on May 28, 2021.
Obtaining the Pension Valuation
[9] Ms. Bartley’s counsel reached out to the TTC Pension Society to inquire about obtaining the family law value of Mr. Brown’s pension without his participation. She was guided by the TTC Pension Society as to which forms from the Financial Services Regulatory Authority (“FSRA”) were required.
[10] Ms. Bartley’s evidence is that although Mr. Brown’s signature was not required for the application (FSCO form 1), it was required for the Joint Declaration of Period of Spousal Relationship (FSCO form 2). Accordingly, Ms. Bartley was unable to obtain the family law value of Mr. Brown’s pension without his signature or a Court order dispensing with same.
[11] Ms. Bartley brought a motion seeking the respondent to be noted in default, leave to bring an uncontested trial, and for the respondent’s consent and/or signature to be dispensed with to obtain a family law value of his TTC pension.
[12] I heard the motion and provided Mr. Brown with an additional 10 business days to file his answer and accompanying documents and gave him one further opportunity to appear in Court, failing which Ms. Bartley would be given leave to bring the uncontested trial. Mr. Brown failed to file his answer and did not appear in Court. Accordingly, Mr. Brown was noted in default. Ms. Bartley was given leave to proceed with an uncontested trial, and Mr. Brown’s consent and/or signature was dispensed with so that Ms. Bartley could obtain the family law value of his TTC pension (the “November 2021 Order”).
[13] Ms. Bartley submitted the required forms to the TTC Pension Society with the November 2021 Order.
[14] However, on December 8, 2021, the Senior Benefits Analyst at the TTC Pension Society notified Ms. Bartley that they were unable to process the family law valuation without the respondent’s signature, despite the November 2021 Order dispensing with same. The email stated:
Unfortunately, we are unable to process the Family Law Valuation with the information you have provided.
My legal counsel has confirmed that we will accept the marriage certificate to meet the requirements for Kavan Brown’s proof of age. This is a one time allowance.
We require proof of the Confirmation of Separation Date. The FSCO Form 2 you have provided was not signed by the member.
The court order you have provided does not exempt the applicant from providing us with the required documentation as set out by FSRA.
Even with consideration for the situation your client is currently experiencing we are unable to process the family law valuation without proof of the Separation Date.
[15] It is unclear to me why, in the face of a Court order dispensing with Mr. Brown’s signature, the plan administrator would not value the pension because the FSCO Form 2 was not signed by Mr. Brown.
[16] The Pension Benefits Act, R.S.O. 1990, c. P.8 (the “PBA”) and the regulations thereunder, including O. Reg. 287/11 (the “Regulations”), set out a comprehensive regime for pension valuation for family law purposes.
[17] Section 67.2(6) of the PBA provides that in the case of spouses to whom Part I of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) applies (i.e., married spouses), either spouse may apply to the administrator of the pension plan for a statement of the imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be. The application must be accompanied by any applicable fee imposed by the administrator: s. 67.2(7), PBA. Once the application is complete, the administrator is required to determine the imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension and give a statement with the prescribed information to both spouses: ss. 67.2(8) and (9), PBA. The Regulations provide that the application for a statement of imputed value must be made on a form approved by the Chief Executive Officer appointed under subsection 10(2) of the Financial Services Regulatory Authority of Ontario Act, 2016 [S.O. 2016, c.37, Sched. 8]. The Regulations also set out certain information that the form must require the applicant to provide, including a declaration signed by the spouses attesting to their family law valuation date or a certified copy of a domestic contract indicating their family law valuation date. It is possible to have two different proposed valuation dates, but there must still be a joint declaration signed by the spouses.
[18] However, in the face of a Court order dispensing with the signature of one of the spouses, who has refused to participate in the Court proceedings, the plan administrator would not value the pension.
[19] Accordingly, Ms. Bartley had to take further steps, adding to her legal costs in this proceeding. Her counsel contacted FSRA to seek guidance on how the respondent’s pension could be valued without his participation. The technical consultant for pension plan operations at FSRA confirmed that she would be in contact with FSRA’s legal department and the TTC Pension Society.
[20] On January 24, 2022, the FSRA technical consultant for pension plan operations at FSRA sent an email to the TTC Pension Society and Ms. Bartley’s counsel authorizing the valuation of Mr. Brown’s pension and instructing the TTC Pension Society to proceed in doing so. The letter from FSRA states:
Section 21(7) of Regulation 287/11 requires that proof of the separation date must be provided either in the form of a joint declaration signed by the spouses (i.e., the Family Law Form 2) or in a certified copy of a domestic contract, which indicates the family law valuation date. Paragraph 3 of the Order dated November 3, 2021 (copy attached) alleviates the requirement for the plan member to sign the joint declaration. As a result, the regulatory prerequisite in section 21(7) of Regulation 287/11 can be satisfied by a declaration signed by Yolanda Bartley alone. The plan administrator should proceed to provide the valuation if all other requirements are satisfied.
It is important to not that the effect of the Order dated November 3, 2021 is limited to the Family Law Value application. If the pension is to be used for equalization, the separation date will have to be provided in any subsequent court order.
[21] The statement of family law value provided by the TTC Pension Society in April 2022 indicates that the family law value of Mr. Brown’s pension plan, as at the family law valuation date of December 9, 2018, is $135,178.55. The maximum amount that may be transferred as equalization to Ms. Bartley is $67,589.18.
Equalization
[22] Based on the Net Family Property Statement provided by Ms. Bartley, Mr. Brown owes Ms. Bartley an equalization payment of $55,525.30.
Costs
[23] Mr. Brown owes $1600 in costs to Ms. Bartley in respect of two prior Court appearances, which have not yet been paid.
[24] Ms. Bartley seeks her costs of the uncontested trial in the amount of $5,900. Given that Mr. Brown, who has received notice of every step of the process, has chosen not to cooperate, this matter has taken significantly longer than it should have, with much higher costs. Had Mr. Brown signed the FSCO form 2 Ms. Bartley would not have had to bring the motion to have his signature dispensed with, nor would she have been required to engage in communications with various agencies to obtain the pension valuation.
[25] Having considered the factors set out in Rule 24(12) of the Family Law Rules and the fundamental purposes of modern costs rules, Mr. Brown shall pay Ms. Bartley’s costs of the uncontested trial in the amount of $5,900.
Payment of Costs through pension transfer
[26] Ms. Bartley asks that the $1,600 outstanding costs and $5,900 costs of this uncontested trial that Mr. Brown owes her be transferred from Mr. Brown’s pension, along with the equalization payment. Based on Mr. Brown’s lack of participation and failure to pay the outstanding costs awards there is concern that he will not pay any costs awards.
[27] Under s. 67.3 of the PBA, the pension transfer must be provided for by an order made under Part I (Family Property) of the FLA or be authorized under a family arbitration award or domestic contract.
[28] Section 10.1(3) of the FLA restricts divisions of a pension plan to immediate transfers of lump sum payments made pursuant to an order under s. 9 or 10 of the FLA, and to orders for a division of pension payments under s. 10.1(5). Pursuant to ss. 9(1)(a) and (d), in an application under section 7 of the FLA, the court is empowered to make orders for:
• Payments of amounts to which the recipient spouse is entitled under Part I of the FLA (e.g., equalization), and
• Transfers of property to satisfy an obligation imposed by the order.
[29] An order under section 9 of the FLA may permit a pension transfer under s. 10.1(3) to meet an obligation to pay an equalization payment and costs: Van Delst v. Hronowsky, 2022 ONCA 349, 74 R.F.L. (8th) 7. The amount ordered cannot exceed the maximum percentage that may be transferred. Here, Ms. Bartley is owed a total of $63,025.30 for equalization and costs, which is less than the maximum transferable amount of $67,589.18.
[30] Given the history leading up to this uncontested trial, in my view it is appropriate in this case to order the prior unpaid costs awards and the costs of the uncontested trial to be satisfied through the pension transfer.
Divorce
[31] Ms. Bartley also requests a divorce. She will need to file her Form 36: Affidavit for Divorce and proof of marriage with the Court for this to be completed.
Disposition
[32] Order to go as follows:
a. The respondent shall pay an equalization payment and costs to the applicant in the total amount of $63,025.30 pursuant to the Family Law Act and payable from the respondent’s pension with the Toronto Transit Commission; and
b. The parties’ date of separation is December 9, 2018.
J. Steele J.
Released: November 4, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Yolanda Kerry-Ann Bartley
Applicant
– and –
Kavan Carlington Brown
Respondent
REASONS FOR JUDGMENT
J. Steele J.
Released: November 4, 2022