Pensions Newsletter - October 2016

Welcome to the 15th 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

Kalawarny Estate v. Fife, 2016 MBQB 146

The estate of Brenda Kalawarny sought a division of Ms. Kalawarny's former partner's pension benefit credits accumulated during their common law relationship. The deceased Ms. Kalawarny and the surviving husband, Mr. Fife, had been in a common law marriage starting on February 1, 1999, until November 7, 2010, at which point they began to live separate and apart. Ms. Kalawarny passed away on March 28, 2014. At the time of Ms. Kalawarny's death, the family law proceedings, which Ms. Kalawarny had commenced, regarding the separation had not been resolved.

Mr. Fife's employer, Canadian National Railway Company (CN), had taken the position that it could not divide the pension pursuant to the breakdown of a common law relationship when the common law spouse was deceased, and the parties had not entered into an agreement to divide the pension prior to the death of the common law spouse. Ms. Kalawarny's estate obtained an interim order requiring Mr. Fife to obtain from CN a statement regarding the commuted value of the pension benefit that had accumulated during the period of cohabitation for the purpose of a division of the pension. CN took the position that it required a request letter from both parties to issue such a statement or a court order to similar effect. Mr. Fife refused to sign a request letter. As a result, the estate made this motion for a court order declaring the pension benefits a shareable family asset to be divided according to relevant pension legislation. Mr. Fife's position was that the pension credits should not be divided. Rather, the application for division should cease and the deceased's property, as it existed at the time of her death, should be distributed according to the deceased's will.

Mr. Fife's pension is governed by the federal Pension Benefits Standards Act (Canada), which states that provincial property laws govern pension divisions in the context of relationship breakdown. The relevant Manitoba statutory provision is section 28(2) of The Family Property Act (Manitoba), which provides that an application for division of family property can continue after one of the spouses or common law partners dies. For this reason, Ms. Kalawarny's application for division of family property, which was launched prior to her death, could be continued by her estate. Furthermore, Justice Hatch ordered the pension benefits accrued during cohabitation to be a shareable family asset to be divided equally between Mr. Fife and Ms. Kalawarny's estate.

Manitoba Court of Queen's Bench Decision

COSTS AWARDS

Dudumas v. Ontario (Superintendent of Financial Services), 2016 ONFST 15

In this dispute before the Financial Services Tribunal (Tribunal), Mr. Dudumas made numerous claims regarding entitlement to additional benefits under the CROWN Metal Packaging Canada LP Pension Plan for Hourly Employees (Plan) and that the benefits provided to him were calculated incorrectly. Mr. Dudumas was permanently laid off during a plant closure at 53 years of age with 26 years of credited service. The plant closure triggered a partial wind-up of the Plan in which Mr. Dudumas was included...