Pensions Newsletter – October 2017

Welcome to the 19th issue of the Blakes Pensions Newsletter. This newsletter provides a summary of recent jurisprudential developments that affect pensions and benefits and is not intended to be legal advice.

FAMILY LAW

Bell v. Ontario Power Generation Inc., 2017 ONCA 587

Michael Shestowsky was an employee of Ontario Power Generation Inc. (OPG), who retired in February 2003 and received a pension until his death in May 2011. Mr. Shestowsky's pension was calculated in accordance with his pension election form, which confirmed that he did not have an eligible spouse. Following the death of Mr. Shestowsky, the appellant, Sylvia Bell, brought a suit against OPG, claiming that she was his spouse and thus entitled to survivor pension benefits pursuant to the Pension Benefits Act (Ontario) (PBA). The PBA defines "spouse" as a person who, at the date of retirement, has been "living together in a conjugal relationship" with the employee for at least three years. The trial judge concluded that Ms. Bell and Mr. Shestowsky had not been living together in a conjugal relationship for the three years preceding his retirement and dismissed the claim on this basis, finding that Ms. Bell was not an eligible spouse under the PBA and therefore not entitled to survivor pension benefits.

Ms. Bell appealed to the Ontario Court of Appeal (Court of Appeal) on various grounds. First, the appeal raised issues that challenged findings of fact, including that the trial judge neglected the fact that a flood had destroyed evidence supporting Ms. Bell's claim and found that her evidence and that of her daughter and friends was unreliable. Second, Ms. Bell argued that the trial judge misapplied the law respecting conjugal relationships by focusing on Mr. Shestowsky's subjective intent and relying on his pension election form. To support her claim, Ms. Bell relied on a previous case where it was held that subjective intent is not a required element of a conjugal relationship, and that the approach to defining a relationship of this kind must be flexible.

The Court of Appeal found that findings of fact by the trial judge were amply supported by the evidence and thus, the trial judge was entitled to deference. Further, the Court of Appeal held that the trial judge correctly applied the non-exhaustive criteria set out in Molodowich v. Penttinen, which held that to find a conjugal relationship, emphasis should be placed on objective, contemporaneous evidence. In this case, objective evidence included, but was not limited to:

The cohabitation agreement signed by both parties indicating that the cohabitation commenced in September 2002 (and which also included a release of Ms. Bell's claims to Mr. Shestowsky's pension entitlements) Change of address notifications filed by Mr. Shestowsky in September 2002 The letter from...