Williamson v Williamson, 2017 ABQB 780

Court of Queen’s Bench of Alberta Citation: Williamson v Williamson, 2017 ABQB 780 Date: 20171218 Docket: 4801 096315 Registry: Calgary Between: Jane Frances Williamson also known as Jane Frances Young Plaintiff/Applicant - and - David Murray Williamson Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ [ 1 ] The parties were married December 23, 1971 and divorced May 30, 2000. There is a written Custody, Support and Property Agreement dated May 17, 2000 ("the Agreement"). Interpreting

Article 19 of the Agreement is at the heart of this application. [ 2 ] The Plaintiff/Applicant, Jane Williamson now Jane Young ("Ms. Young"), claims that the Defendant/Respondent, David Williamson ("Mr. Williamson"), breaching the Agreement, has withheld a portion of the retirement benefit that he is required to pay her. Mr. Williamson denies any breach of the agreement or that he has withheld any portion of the monies which he is required to pay Ms. Young from his retirement payments.

[ 3 ] Ms. Young is self-represented and Mr. Williamson is represented by legal counsel. Issues Issue 1: In interpreting the Agreement is there monies owing to Ms. Young from Mr. Williamson from his retirement payments? Issue 2: Does Ms. Young owe Mr. Williamson any amounts for income taxes under the Agreement? Issue 3: Is Mr. Williamson entitled to an Order that his obligation to pay spousal support to Ms. Young is permanently terminated effective January l, 2012. [ 4 ] Dealing with Issue 2 first, Mr. Williamson confirms that, under the parties' tax filing arrangements with CRA, Ms. Young owes no taxes to Mr.

Williamson. That issue is resolved. [ 5 ] Regarding Issue 3, Ms. Young states that, once issues 1 and 2 are resolved, she will waive her claim to spousal support effective January1, 2012 and will withdraw any maintenance enforcement proceedings. [ 6 ] Addressing Issue 1, Article1 19.1 of the Agreement provides as follows: 19.l The Husband is entitled to Pension and/or a Residual Partnership Interest/Pension ("RPI/Pension") as a result of his service as a partner with PricewaterhouseCoopers (the "Partnership").

The Wife shall be entitled to a share of the Husband's RPI/Pension, including any benefits thereunder, calculated by using the following formula: 16 and ½ years _________________ ) X Yz X gross amount all of the Husband's years of service ) RPI/Pension as a partner with PricewaterhouseCoopers ) when it is received or its predecessor or successor firms, from ) July 1, 1983 to the date of his retirement [ 7 ] The correct name for the RPI/Pension is the Partner Income Security Plan ("PISP"). For ease of reference all references to PISP shall be described as the "RPI/Pension". Both parties agree that Ms.

Young's share of the PISP, according to the above formula, is 32.95% and Mr. Williamson's share is 67.05%. [ 8 ] Mr. Williamson retired from the accounting firm PricewaterhouseCoopers ("PwC") in July 2008. He has paid Ms. Young 32.95% of the RPI/Pension payments since he began receiving them in August 2008 as per the Agreement. [ 9 ] Effective July 1, 2013, PwC changed its method of payment to its retired partners which includes Mr. Williamson. In June 2013, Mr.

Williamson received a letter from PwC informing him that PwC's earnings were no longer sufficient to fund all of the RPI/Pension entitlements and therefore a portion of the RPI/Pension payments would be made henceforth from PwC's Retirement Trust ("RT"). [ 10 ] Prior to July 1, 2013, all payments made to retired partners were made entirely from PwC and were fully taxable in their hands. Effective July 1, 2013, some of the RPI/Pension is paid to Mr. Williamson directly from PwC as before and some of his RPI/Pension is received from the RT. This new RPI/Pension payment method is the source of Ms.

Young’s claim. [ 11 ] RPI/Pension payments from the RT are distributions of capital, not income, therefore they are not taxable to retirees. As such, retirees would be paid on an after-tax basis by deducting a notional amount for tax based on an assumed tax rate equivalent to the highest marginal tax rate applicable to an individual in Ontario. [ 12 ] Mr. Williamson provided this changed RPI/Pension payment information to Ms. Young. [ 13 ] Mr. Williamson continues to pay Ms. Young 32.95% each month of the cash he receives from PwC and the RT relying on

Article 19.1 of the Agreement. [ 14 ] Ms. Young claims that Articles 19.l to 19.4 of the Agreement requires that Mr. Williamson must first make an adjustment by adding back the notional tax adjustment which PwC has deducted, since June 2013, from the RT portion of the RPI/Pension payments, and pay her 32.95% of the larger adjusted amount. Alleging a breach of the Agreement, Ms. Young argues that the tax-free portion of the payments after July 1, 2013 is a significant benefit that is being taken entirely by Mr.

Williamson and not shared with her according to the 32.95% - 67.05% split. [ 15 ] Paragraph 19.2 states that: The RPI/pension as benefit used in the above paragraphs shall be construed to include all benefits received pursuant to the RPI/Pension, not to restrict the generality of the foregoing to include any periodic and lump sum payments of any nature payable under, or pursuant to, the RPI/Pension plan of the Husband. [ 16 ] Paragraph 19.3 states that: The Husband (David Williamson) agrees he shall not do, or omit to do, any act to the prejudice of the interest of the Wife (Jane Young) in the RPI/pension.

[17] Paragraph 19.4 states that: The Husband acknowledges and agrees that he is hereby constituted as trustee for the Wife of her share of the RPI/Pension. [18] Ms. Young submits that the now tax-free portion of the payments after July l, 2013 is a significant "benefit" that is beingtaken entirely by Mr. Williamson and not shared with Ms. Young. [19] Ms. Young submits that as a result of the change in the method payment of the RPI/Pension, Mr. Williamson's total benefitbefore tax is $11,508 and Ms. Young's benefit before tax is $3,876. Consequently, Ms.

Young is receiving, not 32.95% stipulated in theagreement but only 25.19% of the total benefit of $15,384. Mr. Williamson receives, not 67.05%, but 74.81%. This, submits Ms. Young,is contrary to the intended 32.95% and 67.05% split of the pension's benefits required in the Agreement. [20] Mr. Williamson, on the other hand, submits that the plain meaning of

Article 19.1 is clear. Ms. Young is entitled to 32.95% ofthe gross amount of the RPI/Pension when it is received by Mr. Williamson. The Agreement does not contemplate any adjustments. [21] In order for the Court to accept Ms. Young's

interpretation, Mr. Williamson argues that the word "benefits", as used in Article19 .1, would have to be interpreted as including the non-taxable characteristic of the portion of RPI/Pension payments made from the RT,that Ms. Young terms the "tax-free portion of the payments after July 1, 2013." This

interpretation, according to Mr. Williamson, is nottenable. [22] Mr. Williamson refers the court to the definition of “benefit”: Benefit" is defined as follows by the Canadian Oxford Dictionary (2nd ed., 2004): 1 a favourable or helpful factor or circumstance; advantage, profit. 2 (often in pl) allowance of money etc. to which a person is entitled from a pension plan, government support programs, etc.(unemployment insurance benefits). 3 (often in pl) an advantage other than salary associated with a job, e.g. dental coverage, life insurance, etc. 4 a public performance, sporting event etc. held in order to raise money for a particular player, charity, etc. [23] As set out above,

Article 19.2 defines “benefits”: The RPI/pension as benefit used in the above paragraphs shall be construed to include all benefits received pursuant to the RPI/ pension,not to restrict the generality of the foregoing to include any periodic and lump sum payments of any nature payable under, or pursuant to,the RPI/pension plan of the Husband. [24] Mr. Williamson submits that in

Article 19.2, the word "benefits" is associated with the words "periodic and lump sumpayments". He further submits that the wording makes it clear that ''benefits" is used in the sense of an allowance or payment of money.He points out that,

Article 19.2 twice refers to "benefits" and "payments" in relation to the "RPI/Pension", which further emphasizes thatthese are "benefits" and "payments" in the context of a pension or other retirement vehicle - i.e. the second definition of "benefits" in theCanadian Oxford Dictionary. [25] Mr. Williamson also states that the further use of the word "benefit(s)" in

Article 19 makes it clear that it is to be understoodas a type of payment, not as a favourable factor or circumstance or advantage. This is apparent, he submits, from the contexts in whichthe word is used in Articles 19.7, 19.7(b), 19.9, 19.12.

Ruling [26] I accept the application of Laverdiere v Laverdiere, [2000] AJ No 739 (QB), at para 20: The aim of construing a contract is to determine the parties' intentions by first determining the plain and ordinary meaning of thelanguage used in the document, within the context of the sentence, paragraph, and contract as a whole. [27] As stated earlier, Paragraph 19.1 of the Agreement states that: The Wife shall be entitled to a share of the Husband's RPI/Pension, including any benefits thereunder, calculated by using "a formulawhich both parties agree results in paying Ms.

Young 32.95% as her share [emphasis added]. [28] It is common in legal writing to state a general rule and then to elucidate with more specific examples. Hence the use of thephrase in

Article 19.2 "not to restrict the generality of the foregoing..." In my view, use of this phrase means "without limitation" andprevents using the second clause to limit the application of the first. The word "benefits" should be given a broad meaning. Law Societyof Upper Canada v Ontario (Attorney General) (ON SC), 21 OR (3d) 666 at p 9. [29] Mr. Williamson takes the position that the cash he receives is the sole basis for determining the amount to which Ms. Young'spercentage share (32.95%) should be applied. This is not correct. [30] I find Ms. Young's

interpretation is within the scope of the definition of "benefits" in

Article 19.2 , even if it is not enumeratedin the words "any periodic and lump sum payments of any nature payable under, or pursuant to, the RPI/pension plan of the Husband.” Itis nonetheless a benefit now accruing to Mr. Williamson even though it is a different payment source from the one when the Agreementwas signed in 2000. The non-taxable retirement payment portion benefits Mr. Williamson by increasing the overall amount he now

receives. That benefit must be shared with Ms. Young. [ 31 ] Such an

interpretation is in line with parties' reasonable expectations that they share the pension benefits, all of the pension benefits, according to the 32.95% - 67.05% split. [ 32 ] The formula percentage is to be applied against the "gross amount RPI/Pension when it is received. Ms. Young's 32.95% should be applied against the gross amount of RPI/Pension, including benefits, when it is received by Mr. Williamson, as required by the Agreement. [ 33 ] The gross amount of the RPI/Pension, including benefits, refers to both cash and non-cash benefits received.

I find that the non-cash benefit received is the non-taxable benefit received by Mr. Williamson each month which he is required to percentage share (32.95%) with Ms. Young according to the Agreement. [ 34 ] To be clear, Ms. Young's entitlement percentage of 32.95% must be applied against the "gross amount RPI/Pension when it is received". This requires that Ms. Young must receive her share of the monthly entitlement made up of both cash and non-cash amounts when received. [ 35 ] Mr. Williamson has applied Ms.

Young's 32.95% to the net amount and not the gross amount on the PwC "Retirement Entitlement Monthly Payments"

schedule each month, resulting in an underpayment of what is owing to her under the Agreement. [ 36 ] This court orders the following: a. Mr. Williamson owes Ms. Young her share of the pension benefits from July 1 to November 30, 2017. The total amount owing is calculated using the amount calculated by Ms. Young up to 31 October, 2017 of $31,009 plus the amount for November 2017 of $1,193 for a total of $32,202 plus interest under the Alberta Judgement Interest Act . b. Commencing on December 1, 2017, and for all future RPI/Pension payments Ms.

Young will receive 32.95% of the gross amount of the RPI/Pension including any benefits as such amounts are received by Mr. Williamson. c. Ms. Young does not owe income taxes to Mr. Williamson from 2008 to the date of this judgment. Subject to the parties current income tax filing arrangements remaining acceptable to the Canada Revenue Agency, Ms. Young will not owe income tax amounts to Mr. Williamson for future retirement pension benefits. d. Mr. Williamson's obligation to pay spousal support to Ms.

Young as set out in Articles 12 and 13 of the May 17, 2000 Agreement and paragraph 7 of the Divorce Judgment and Corollary Relief Order of May 23, 2000 after 2011 is permanently terminated effective January l, 2012. [ 37 ] As to costs, Ms. Young achieved full success on issue one and Mr. Williamson achieved some success on issue three. Both parties agreed on the result of issue two. Ms. Young is self-represented but this is an appropriate circumstance where she should receive a cost award which I set at $750.00 all in. Heard on the 26 th day of October, 2017.

Dated at the City of Calgary, Alberta this 18 th day of December, 2017. Bryan E. Mahoney J.C.Q.B.A. Appearances: Jane Frances Young Plaintiff/Applicant – Self-represented Adam Singer for the Defendant/Respondent