Jeske v Jeske, 2021 ABQB 58

Court of Queen’s Bench of Alberta Citation: Jeske v Jeske, 2021 ABQB 58 Date: 20210121 Docket: 4801 170259 Registry: Calgary Between: Shelley Lynn Jeske Plaintiff/Respondent - and - Donald Keith Jeske Defendant/Applicant _______________________________________________________ Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ [ 1 ] After many years of difficult marriage, Shelley and Donald Jeske separated in July of 2016.

During their time together, the couple had two sons – Sean and Nathan. [ 2 ] As so often happens in this province, the family was afflicted by mental and physical health problems, some of which were associated with opiate and alcohol abuse. Mr. Jeske struggled with Hepatitis C, drug addiction, alcoholism, and was on one occasion hospitalized due to suicidal ideation. Sean died following the separation of his parents. Ms. Jeske was forced to go on disability following cancer surgery, and extended her leave following Sean’s death. In October 2019, Ms.

Jeske and Nathan (who is now an adult) moved to Kelowna for a fresh start, where they share a home.

[ 3 ] Despite these personal difficulties, Mr. and Ms. Jeske had financially rewarding careers. She worked at a local university, and over the years built up a substantial retirement fund through the Local Authorities Pension Program (“LAPP”). He worked at Shell Canada Limited, starting there shortly after the couple’s marriage in 1989, and also built up a substantial retirement fund pursuant to a defined contribution plan and a defined benefits plan. [ 4 ] Following separation, it took a long time to resolve the issue of matrimonial property division.

Among other things, it was necessary to reach agreement as to the value of the two pension programs having regard to the differences in health and age of the parties, and to determine the most advantageous mechanism for effectuating the division of those pensions as part of the matrimonial property distribution. [ 5 ] Both sides engaged specialists in matrimonial and pension law matters, who in turn sought actuarial advice to assist.

A mediator/arbitrator was retained to decide the issue if required. [ 6 ] In October of 2018, on the eve of hearing, an agreement was reached regarding all of the couple’s matrimonial property including their pensions. No contract was prepared. Rather, the agreement was (in the words of the Applicant’s counsel) reified in the form of a series of court orders.

Oxford’s defines “reified” as “to make something that is abstract more defined or real”. [ 7 ] Four orders were prepared—a comprehensive Consent Matrimonial Property Order (“The Consent MPO”), and three subsidiary orders which were attached to it as schedules. Three of these were to take effect immediately upon presentation to and approval by the Court—the Consent MPO and Schedules A and C. The fourth (Schedule

B) was an order that Ms. Jeske was entitled to obtain in the future. It would divide Mr. Jeske’s Shell pension at source on a 60/40 basis in Mr. Jeske’s favor. [ 8 ] On December 3, 2018 the package of orders was presented to the Court, in morning Chambers. Justice Hall granted the Consent MPO, and the two scheduled orders that were to have immediate effect. [ 9 ] On January 16, 2019 Mr. Jeske died. Because the division at source order had not yet been applied for or obtained by Ms. Jeske, her survivorship rights under Mr. Jeske’s pension were engaged.

She has therefore been receiving a monthly pension from Shell under the terms of the Shell defined benefits pension program, and also requested and received transfer of funds held in a LIRA under Mr. Jeske’s defined contribution plan. [ 10 ] Ms. Jeske now has no intention to act on her entitlement to obtain an order dividing the Shell defined benefits pension at source, choosing instead to continue receive a lifetime monthly pension as Mr. Jeske’s joint annuitant and survivor. Mr.

Jeske’s Estate (on behalf of Nathan Jeske, its sole beneficiary) applies for an order varying the comprehensive matrimonial property order so as to compel the division of Mr. Jeske’s defined benefit pension at source. [ 11 ] To decide this application, I must determine whether it is appropriate to amend the Consent MPO given the death of Mr. Jeske shortly after its issuance; and if so whether I am barred from doing so under the doctrine of functus officio.

I have decided that it is not appropriate to vary the order, as it is clear on its terms and the variation sought would constitute a fundamental reallocation of risk as agreed to by the parties under the terms of the Consent MPO. Although not necessary for the purpose of this decision, I also find that I have no jurisdiction to substantively change the comprehensive order as it constitutes a final property division order with only limited provisions for future applications, none of which apply. The Orders [ 12 ] The Consent MPO is comprehensive in scope.

It deals with all of the couple’s matrimonial property and liabilities, including the matrimonial home, vehicles, household contents, bank accounts, RRSP’s, silver and gold bullion, credit cards, lines of credit and pensions. The provisions dealing with pensions are as follows: 3. The parties shall forthwith enter into the form of Order attached as

Schedule “A” hereto for the purpose of having the Shell DB Benefits put into pay in the form of a monthly 60% Joint and Survivor form of pension in which the plaintiff is the joint annuitant and designated nominee. 4. Upon the Shell DB Benefits being commenced with arrears to March 1, 2017, the Plaintiff shall be entitled: (

a) to receive 47.62% of the arrears calculated on an after-tax basis, which sum shall be paid to her by the Defendant out of the funds remining in trust; and (

b) to obtain a Consent Matrimonial Property Order dividing both the Shell DC Benefits and Shell DB Benefits at source between them, each party being entitled to receive: i. an equal portion of the Shell DC Benefits for the period of joint accrual commencing June 23, 1989 (date of marriage) to March 1, 2017 (date of retirement and cessation of service of the Defendant under the Shell Plan); and ii. in the case of the Plaintiff, a 40% portion of the Shell DB Benefits and in the case of the Defendant, a 60% portion thereof, for the period of joint accrual commencing April 4, 1988 (date of membership of the Defendant under the Shell Plan) and March 1, 2017 (date of retirement and cessation of service of the Defendant under the Shell Plan), such period of joint accrual being agreed upon to allow, most simply, the determination of the parties’ portions in the percentages agreed upon as set out above; iii. all of the above shall be in accordance with the method of calculation and payment provided in the Employment Pensions Plans Act , S.A. 2012, c.

E-8.1 and its Regulations on a then going-forward basis, and the form of which Order is attached hereto as

Schedule “B” ; 5. The Defendant shall, within 7 days of the receipt of the arrears, retain and pay Marlin Miller, C.A. of RSM Canada (formerly Collins Barrow) or another accountant of his choosing to determine the appropriate amount of the tax attributable to the Plaintiff’s 47.62% share

of the arrears to be paid to her by the Defendant as per subparagraph 4(

a) above. 6. The Defendant shall pay the net amount of the arrears so determined pursuant to paragraph 5 above to the Plaintiff from the sum of $45,000.00 being held in trust as set out in paragraph 1 above within 5 business days of the determination of taxes by the accountant. Upon such payment being made, the balance of the funds held in trust, if any, shall be released to the Defendant. 7.

The above arrangements with respect to the Shell DB Benefits are contingent on the Shell Plan Administrator carrying out the commencement of the payment of the Shell DB Benefits to the Defendant in conformity with its previous advice, i.e. effective as of March 1, 2017 with the corresponding arrears from March 1, 2017 to the month in which payment is made also being paid to the Defendant. In the event the Shell Plan Administrator departs from this, the parties shall attempt to come to an arrangement of the parties may forthwith return to Elaine Seifert for arbitration.

Any agreement of arbitration award is to carry out the division at source of the Shell DB Benefits between the parties in a manner that incorporates such modifications as are required due to the change enacted by the Shell Plan Administrator while also adhering as much as possible to the spirit of the terms set out below and in

Schedule “B” hereto. If required to return to Elaine Seifert, each party shall have the right to make submissions as to the nature of the changes that will then be required. 8. The Defendant shall provide copies of the correspondence and statements that he receives from the Shell Plan Administrator pertaining to the commencement of the payment of the Shell DB Benefits, including the arrears, within 5 days of his having received same from the Shell Plan Administrator. 9.

It being also acknowledged by the parties that the Plaintiff has accrued and is continuing to accrue defined benefit pension benefits in her name under the Local Authorities Pension Plan (the “LAPP Benefits”), the Defendant shall be entitled to receive an equal share of the LAPP Benefits for the period of joint accrual commencing June 23, 1989 and ending October 1, 2018, all in accordance with the method of calculation and payment provided in the Public Sector Pension Plans Act , R.S.A. 2000, c. P-41 and its Regulations and the Local Authorities Pension Plans (Legislative Provisions) Regulation .

The parties forthwith shall enter into a Consent Matrimonial Property Order dividing the said LAPP Benefits between them in the form attached as

Schedule “C” hereto. [ 13 ] The

Schedule A order immediately put the Shell Canada defined benefit pension into pay. Its

preamble recognizes that no order had yet been entered dividing the defined benefits at source. It provides that defined benefits payments would commence forthwith and were to be paid in the “60% Joint and Survivor form of pension, in which the Non-Plan Member is the joint annuitant as reflected in the option form already completed and submitted...” (para 3). It also allowed the parties to apply for a further order regarding treatment of the Sun Life LIRA held upon marriage breakdown.

The order permits parties to make further applications to the court for advice and directions” provided that such relief does not necessitate any variation of this order as to any matter of substance decided by it” (para 6). [ 14 ] The

Schedule C order immediately divided Ms. Jeske’s LAPP pension, on a 50/50 basis. Upon receipt of his share, Mr. Jeske would have no further claim on such benefits and was required to complete any forms, waivers or court orders necessary to allow Ms. Jeske to deal freely with her remaining LAPP benefits. It contains a similarly worded provision allowing for future applications for advice and direction provided that the relief does not result in a variation of the Order with respect to any matter of substance decided by it. [ 15 ] The

Schedule B order would have divided the Shell defined benefits pension at source. Among other things, its recitals indicate that the parties have agreed to divide the Shell Canada

(2007) Pension plan at source and that Ms. Jeske is and currently remains the designated nominee and joint annuitant in respect of the 60% Survivor benefits payable in accordance with Mr. Jeske’s pension. The Application to Vary [ 16 ] The Estate of Donald Jeske applies to vary the comprehensive Order. It asks that Paragraph 5 of the Order be amended pursuant to Rule 13.1 to read as follows: (amendments underlined) 5. (...) The Shell DB Benefits having been commenced with arrears to March 1, 2017, effective with the Shell Canada Ltd. pension payroll for the period January 1 to January 31, 2019 , the Plaintiff shall be entitled:

a) to receive 47.62% of the arrears calculated on an after-tax basis, which sum shall be paid to her by the Defendant out of the funds remaining in trust; and

b) to obtain a Consent Matrimonial Property Order dividing both the Shell DC Benefits and Shell DB Benefits at source between them, in default of which said division is hereby directed effective as January 2, 2019 , each party being entitled to receive: i. an equal portion of the Shell DC Benefits for the period of joint accrual commencing June 23, 1989 (date of marriage) to March 1, 2017 (date of retirement and cessation of service of the Defendant under the Shell Plan); and ii. in the case of the Plaintiff, a 40% portion of the Shell DB Benefits and in the case of the Defendant, a 60% portion thereof, for the period of joint accrual commencing April 4, 1988 (date of membership of the Defendant under the Shell Plan) and March 1, 2017 (date of retirement and cessation of service of the Defendant under the Shell Plan), such period of joint accrual being agreed upon to allow, most simply, the determination of the parties’ portions in the percentages agreed upon as set out above; iii. all of the above shall be in accordance with the method of calculation and payment provided in the Employment Pension Plans Act , S.A. 2012, c.

E-8.1 and its Regulations on a then going-forward basis,(...) the intended form of which Order is attached hereto as

Schedule “B ” ; and

iv. in view of the death of the Defendant prior to the Order set forth in

Schedule “B”having been granted as a stand-alone Order, the provisions of

Schedule “B” are incorporated herein and directed to take effect as ofJanuary 2, 2019; [17] Rule 13.1 allows a judge to vary the order of another judge if the other judge dies, ceases to hold office or if it isinconvenient, improper or impossible for that other judge to act. It does not extend, however to allow a judge to vary a final ordergranted by her or any other member of the Court. It has long been held that a final decision cannot be reopened unless there had been aslip in drawing it up, or there was an error in expressing the manifest intention of the court: Chandler v.

Alberta Association ofArchitects, (SCC), [1989] 2 SCR 848 at p. 856. [18] Assuming for the moment that the application is not barred by the doctrine of functus officio, the question to be determined iswhether the variation request has merit. [19] The Estate argues that the comprehensive order does not reflect the agreement of the parties—that the Shell pension would bedivided at source on a 60/40 basis. Accordingly, the court should intervene to order that the pension be divided at source effective as ofJanuary 2, 2019.

It says that the correspondence between counsel prior to the Order being presented to the Court on December 3, 2018made it clear that this was the intended outcome. In the circumstances, the Court is entitled to look behind the terms of the consent orderto ascertain the intentions of the parties, and to correct the order so as to effectuate the bargain made: Spender v Spender, (BC SC), [1999] B.C.J. 910 (B.C.S.C.) [20] In Spender, the BCSC considered an application to strike a third-party claim.

The application was grounded on the argumentthat a consent order in a related action gave rise to issue estoppel and res judicata. The Court noted that: “As a consent dismissal orderwill rarely state any detail, the court can and must look to the pleadings, to any written agreements or releases executed by the parties,and to any correspondence, in order to ascertain the precise shared intentions of the parties that has been given effect by the consentorder”: para 20. [21] In my view, the circumstances of this application are far removed from that discussed in Spender.

The orders in question hereare comprehensive and detailed. They are the mechanism chosen by the parties, with assistance of experienced counsel, to memorialize,or reify, the agreement.

There is no justification for conducting the sort of review described in Spender because the order in questionconstitutes the agreement itself. [22] I am also not satisfied, based on the materials that the Estate did file before me, that the comprehensive MPO does not reflectthe objective intentions of the parties in resolving their matrimonial property dispute. [23] I agree with the Estate that the parties expected that there would be a division of the Shell pension at source. Ms. Jeskewanted that opportunity, just as Mr. Jeske wanted the opportunity to secure 50% of Ms.

Jeske’s LAPP pension. [24] However, the fact that the division at source could only be done a later point in time (after the Shell pension was put into pay)created certain risks. Until such time as Ms. Jeske applied for and received the consent order dividing the Shell pension at source bothparties were at risk that if they were to die before issuance of that Order the other would receive a disproportionate share of the pension.If Ms. Jeske was to die before obtaining the division at source order, Mr. Jeske would have been immediately entitled to all of the Shellpension (as well as 50% of Ms.

Jeske’s LAPP pension, the division of which took place immediately on issuance of the

Schedule COrder). If Mr. Jeske was to die before the Shell pension was divided at source, Ms. Jeske would be entitled to her full survivorship rightsunder that pension but would have already lost 50% of her LAPP pension. [25] The affidavit materials provided to me do not disclose any specific discussion as to how these interim risks were to be dealtwith. It is possible that they were was considered too remote to worry about. However, the Order putting the Shell pension into playspecifies that pending division of the pension at source, the Shell pension would continue to be subject to Ms.

Jeske’s survivorshiprights. One can infer therefore that it was the objective intention of the parties that Ms. Jeske would be entitled to do exactly what she didfollowing Mr. Jeske’s untimely death: take the most advantageous option open to her under the Shell pension program by not acting onher entitlement to have the pension divided at source. [26] It is also not clear to me that such an outcome is one that the late Mr. Jeske would have resisted. In argument, I was advisedby counsel for the Estate that if this application is granted, the Estate (i.e.

Nathan Jeske – the sole beneficiary) would receiveapproximately $260,000 from the Shell pension proceeds. He would receive nothing from that pension if the application is denied. Ms.Jeske would receive a payout of $462,007 from the Shell pension plan if the Estate’s application is granted, versus a total value ofmonthly payments over her expected lifetime of $1,155,017 if the application is denied. [27] This was a high conflict family law dispute. It is possible that given a choice, Mr.

Jeske would have opted to have his sonreceive $260,000 more following his death (plus 50% of his Mother’s LAPP pension) even at the cost of Ms. Jeske receivingapproximately $700,000 less over her lifetime from the Shell pension. I am not however prepared to infer such a spiteful intent. [28] In conclusion, I am not prepared to vary the terms of the Consent Matrimonial Property Order. The wording of paragraph 5 ofthe order clearly grants Ms. Jeske the entitlement to obtain an order in the future dividing the Shell pension at source.

It does not compelher to do so. [29] For me to vary that order would constitute a fundamental, and ex post facto, change to the allocation of risk agreed to by theparties. I would be hesitant to do so even if there was evidence that the order conflicted with the objective intentions of the parties, and Iam certainly unwilling to do so where the evidence, and fairness, indicates otherwise. Jurisdiction to Vary

[ 30 ] Ms. Jeske cross applies pursuant to Rule 7.1 for an order declaring that the Court has no jurisdiction to vary the Consent MPO, based on the doctrine of functus officio. [ 31 ] As a general rule, once a final decision has been made the jurisdiction of the Court is considered to be spent. To preserve jurisdiction, the Court must reserve the right to review and vary the decision.

As noted earlier there are two exceptions to the general rule: where there has been a slip in drawing up the order in question, or when there was an error in expressing the manifest intention of the Court: Chandler at p. 856. [ 32 ] Neither of these exceptions apply here. [ 33 ] The Estate argues that the package of orders presented to (and in the case of three of them, issued by) the Court on December 3, 2018 were not final, because they contemplated that further applications would be made. This included an application by Ms.

Jeske for an order directing the division of the Shell pension at source (Schedule B), and follow up orders as required to put other pension details into place as referred to in the

Schedule A and

Schedule C orders. [ 34 ] In my view the Consent MPO granted in this case was intended to be final and is as a matter of law a final order. Nothing in the language used in the order indicates anything other than that. It is not expressed as being interim, and there are no recitals to that effect. Unlike the orders attached as schedules, it contains no provisions related to additional or future applications. It operates immediately to divide all of the couple’s property including pensions, with a path forward for the ultimate division of the Shell defined benefits pension at source on application by Ms.

Jeske should she decide to do so, based on a detailed and specific consent order agreed to in advance. Mr. Jeske’s death made it unadvisable for Ms. Jeske to take advantage of that right, but the possibility of such an event does not make the Consent Matrimonial Property Order anything less than final. [ 35 ] Accordingly, I agree with Ms. Jeske that the Court is functus officio. Even if the application to vary had merit, I would have no jurisdiction to grant it and I would have dismissed the appeal on that basis. [ 36 ] The appeal is therefore dismissed, with costs.

If the parties are unable to agree on costs within thirty days, that matter may be remitted back to me for determination by way or written submissions, not to exceed three pages in length exclusive of authorities. Heard on the 19 th day of November, 2020. Dated at the City of Calgary, Alberta this 21 st day of January, 2021. R.A. Neufeld J.C.Q.B.A. Appearances: Patricia L. Daunais, Q.C. for the Plaintiff/Respondent Rita M. Richardson for the Defendant/Applicant