Stephanie Jane Kalinowski

The appellant appealed a trial judgment dismissing her claim for survivor pension benefits following the death of Michael Shestowsky, a former employee of the respondent.

The appellant claimed entitlement to survivor benefits as a "spouse" under the Pension Benefits Act, which requires living together in a conjugal relationship for at least three years before retirement.

The trial judge found the appellant was not an eligible spouse based on objective, contemporaneous evidence including a cohabitation agreement stating the parties intended to commence cohabiting, pension election forms confirming no eligible spouse, and tax returns.

The Court of Appeal upheld the dismissal, finding the trial judge properly applied the law and his factual findings were amply supported by evidence.

The appellant and the deceased entered into a separation agreement in which the deceased represented that the appellant was solely entitled to his pension survivor benefits.

The agreement also provided that if the deceased remarried, he would make all possible efforts to have his new spouse release her claims to his pension.

The deceased remarried and subsequently died before retiring.

The appellant brought an action claiming entitlement to the pre-retirement death benefit, arguing the separation agreement constituted an assignment under the Pension Benefits Standards Act, 1985.

The Court of Appeal dismissed the appeal, holding that the separation agreement did not amount to a clear and unequivocal assignment of the pre-retirement death benefit, particularly given the express recognition that a subsequent spouse might not release her rights.

The moving party sought summary judgment requiring a pension plan administrator to pay her a pre‑retirement death benefit under a federally regulated pension plan following the death of her former spouse.

The claim relied on a separation agreement stating that she would receive survivor benefits from the pension.

The court considered whether s. 25(4) of the Pension Benefits Standards Act permitted assignment of a pre‑retirement death benefit to a former spouse and whether the language of the parties’ separation agreement and related documents constituted an effective assignment.

Although the court held that the statute permits assignment of such benefits, it concluded the wording of the separation agreement and related direction did not clearly and unambiguously effect an assignment.

The statutory priority of the surviving spouse therefore prevailed and the death benefit was payable to the deceased member’s later spouse.