McKearney-Morgan v. Morgan, 2016 NSSC 79

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: McKearney-Morgan v. Morgan , 2016 NSSC 79 Date: 20160420 Docket: 1217-000734 Registry: Port Hawkesbury Between: Michelle Marie McKearney-Morgan Applicant v. John Bernard Morgan Respondent Judge: The Honourable Justice M.C. Legere Sers Heard: March 8, 2016, in Port Hawkesbury, Nova Scotia Written Release: April 20, 2016 Counsel: Robyn Fougere, counsel for Ms. McKearney-Morgan John Bernard Morgan, Self-Represented.

By the Court: [ 1 ] By Decision dated September 12, 2013 this Court granted a Divorce Order and Corollary Relief Order. [ 2 ] Both parties were represented by counsel. [ 3 ] I have reviewed the Decision and the findings of fact forming part of the deliberation in this Motion. Entitlement / Unequal Division of the Pension [ 4 ] This was a short term marriage. During the marriage the Applicant invested her savings within the marriage and lost the benefit of them. Her investments benefited the Respondent.

[ 5 ] The Respondent used the short term nature of the marriage as a basis to exclude his NewPage pension (essentially the only asset remaining of any value) from the division of assets. [ 6 ] The pension did not fall within one of the excluded assets categorized in section 13(4) of the Matrimonial Property Act . Thus it was considered a matrimonial asset presumptively subject to equal division. [ 7 ] Paragraph 80 to 84 of the Decision discussed these equities: [80] The matrimonial home was built just two years prior to the relationship and the Petitioner has certainly proven that she has contributed significantly to this asset. [81] All other subsections of

section 13, if considered, would relate more to the impoverishment of the Petitioner as a result of the investment of her funds in the marriage, the amount of debts to which she contributed. Section 13(1) [MPA] reads as follows: “The value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship that party will lose the chance of acquiring", given she withdrew her own pension contributions prior to entering into the relationship and invested it into the family unit.

The Respondent continues to live in the matrimonial home. [82] Selling the home would not result in sufficient profit to either party to offset the contributions the Petitioner put into the marriage and the hardship she will suffer as a result of that one year and five months and her investment of equity and pension contributions. [83] There is no other asset other than the home and the pension. [84] The only reliable evidence the Respondent has given with respect to the pension is contained in Exhibit "A" attached to his Affidavit dated May 24, 2012, which shows an accumulation of contributions to December 31, 2009, of $58,006.62. [ 8 ] Paragraph 86 states: [86] The Petitioner's Capitol contribution to the marriage was $36, 212.01. [ 9 ] Paragraph 90 to 91 concludes: [90] With respect to the pension, the Petitioner shall be entitled to thirty-five (35) percent of the total pension earned up to the date of separation that is March 3, 2009. [91] The combination of these two awards in some manner equalizes as much as possible the division of assets and debts having regard to what each brought into the marriage, contributed to the assets and gained/suffered as a result of the breakdown of the relationship.

[ 10 ] The Court granted the Applicant a 35% interest in the Respondent’s entire employment pension earned with Stora Enso up to March 3, 2009, the date of separation.

This included premarital contributions. [ 11 ] On March 12, 2013 a separate Pension Order was issued: The Applicant was to receive 35% of the Respondents pension benefits to the date of separation payable in accordance with the terms of the Pension Benefits Act of Nova Scotia, together with all corresponding rights and elections to which a spouse of a member or former member of a pension plan is entitled upon division pursuant to the Matrimonial Property Act R.S.N.S 1989, c275, the Pension Benefits Act R.S.N.S.1989,c340 and the applicable regulations governing the Act. [ 12 ] The benefits were to be transferred to the credit of the Applicant in the records of the Pension Plan Administrator. [ 13 ] The usual provisions accompanied this Order, including directions to the Administrator to disclose information to the Applicant pursuant to

section 61, facilitate enforcement and relating to indexing and enforcement. [ 14 ] The Court reserved for the parties the right to return as required with respect to

interpretation, implementation or administration of the Order as it related to the division of pension benefits. [ 15 ] Both counsel signed the Order on behalf of their clients. This Order was filed with the Pension Administrators Morneau Shepell. [ 16 ] The Decision was not appealed. Issue [ 17 ] The Applicant is unable to obtain or secure her interest; the Pension Administrators are unwilling to enforce the Order and the Respondent has not agreed to act as trustee for the Applicant’s interest without Court Order.

Motion for Directions [ 18 ] Subsequently, the matter came before the Court on November 13, 2013, April 14, 2014, November 3, 2014, January 19, 2015, May 11, 2015, September 9, 2015 and December 7, 2015. [ 19 ] The running file sets out the ongoing communications between the parties. The particulars of the pension were difficult to obtain.

After considerable discussion and attempts to enforce the Order, it was evident the Investors and Administrators of the pension fund refused to effect the division. [ 20 ] In fact they completed their own calculations and determined the Applicant’s interest to be 50% of the pension benefits earned during the short term marriage. [ 21 ] On September 29, 2014 the Respondent sent written directions to a registered Financial Planner with IPC investment corporation to waive his rights to the Applicant’s 35% and give effect to the division of his pension in accordance with the Court Order. [ 22 ] The Pension Administrators refused to effect the Order.

[ 23 ] The Pension Administrators actually transferred to the Applicant $2,822, as representative of her share ; to be held on her behalf with NewPage as administered by Morneau Shepell. It was later discovered her 35% share would have been $44,818.90. [ 24 ] Once all negotiations and efforts to effect the division in accordance with the Court Order were exhausted, this matter was set down before me to be heard on January 26, 2016.

Pension Details [ 25 ] The pension in question was formerly held with the Pension Plan for the Hourly Employees of NewPage Port Hawkesbury Corp. (Stora Enso and NewPage Pension) [ 26 ] The Respondent elected to wind-up his pension benefits.

He instructed the Pension Administrators to transfer his portion of the pension with NewPage to a LIRA with Fidelity Investments. [ 27 ] On July 9, 2013 in the course of effecting the wind-up the Respondent was advised by the legal consultant for Morneau Shepell the Order for division of pension credits was unenforceable. [ 28 ] The Applicant opted for an extended wind-up option and her funds “as calculated by the Administrator” and not in accordance with her entitlement as ordered by the Court, remained in the NewPage Pension administered by Morneau Shepell. [ 29 ] In the case before me the Pension Administrators ignored the Court Order due to what they perceived to be a conflict between the Nova Scotia Matrimonial Property Act and the Pension Benefits A ct.

Valuation [ 30 ] The Corollary Relief Judgement contained the Order that the Applicant’s share of the Respondent’s pension was 35% of the total pension. [ 31 ] During the course of the Hearing, the value of the pension was unknown to the parties and thus to the Court.

As noted previously, the only evidence of pension was attached to the Respondents affidavit dated May 24, 2012 showing an accumulated value of contributions to December 2009 of $58,006.62. [ 32 ] On or about March 28, 2014 as a result of the Respondent’s request to wind up his pension he received $125,232 via transfer to a locked in retirement account for his sole benefit.

This transfer included the remainder of the funds determined by the Court to be the Applicant’s share. [ 33 ] There was no information before the Court then or now that speaks to whether there was a lump sum payable in excess of the commuted value or whether the commuted value exceeded the amount permitted under the Income Tax Act (Canada) for the purchase of the life annuity. [ 34 ] On June 1, 2015 the Court issued a Consent Order pursuant to section 35(1) of the Nova Scotia Pension Benefits Act directing Fidelity Investments and Investment Planning Council to provide the details of the LIRA and advise what, if any, action they were prepared to take to comply with the Court Order. [ 35 ] We now know the Applicant’s share; barring the discovery of a lump sum in excess of the locked in transfer; would have amounted to $44,818.90 as of the date of the transfer (March 28 th 2014) .

Process [ 36 ] At some point the Respondent directed the Fund Administrators to follow the Court Order as it relates to the division of his pension. [ 37 ] Thereafter the discussions between the fund administrators, the Respondent, the Superintendent of Pensions and the Applicant’s counsel revealed the confusion and competing

interpretations as to the Applicant’s entitlement. [ 38 ] A legal consultant for Morneau Shepell provided the Applicant’s counsel a copy of his letter of September 6, 2013 advising the Respondent as follows: While the Court Ordered 35% of the entire pension, the Pension Benefits Act will not permit more than 50% division of pension credits accrued during the period of the relationship. [ 39 ] The Applicant’s counsel wrote to the Senior Pension Analyst of Morneau Shepell and was informed by letter dated May 6, 2013 as follows: Our legal counsel and actuary have discussed and formulated their position concerning this marriage breakdown arrangement, they have written to the Superintendent of Pensions seeking her confirmation of their

interpretation. [ 40 ] Counsel was subsequently informed by the senior pension analyst in July of 2013 that the Superintendent of Pensions ruled that the Pension Division Order, breached the 50% rule and therefore was unenforceable. [ 41 ] However, on April, 2015 the Superintendent of Pensions wrote to the Respondent and advised as follows: In his e-mail to you dated July 9, 2013, (legal counsel) stated that I had made a decision on whether or not the Court Order relating to your divorce, was enforceable in respect to the division of your pension benefit.

Please note I did not see the Court Order nor did I make any written decision with respect to the Court Order . [ 42 ] The Superintendent does confirm they cannot administer the Order as it is written. [ 43 ] The Pension Benefits Act absolves the Pension Administrators of any liability once in receipt of the member holders direction. 14) The administrator is discharged on making the payment or transfer in accordance with the direction of the former member if the payment or transfer complies with this Act and the regulations.

Section 89(1)&(2) of the Nova Scotia the Pension Benefit Act (as amended) states as follows: 89

(1) Money payable under a pension plan is exempt from execution, seizure or attachment.

(2) Money transferred from a pension fund to a prescribed retirement savings arrangement or for the purchase of a life annuity pursuant to

Section 61, 62, 67 or 74 or subsection 96(2) is exempt from execution, seizure or attachment. [ 44 ] However pursuant to

section 90 of the Pension Benefits Act S.N.S. recovering arrears of child support is a singular permissible reason to attach a pension. 90

(1) Notwithstanding any enactment, for the purpose of enforcement of a Maintenance Order as defined in the Maintenance Enforcement Act.

(

a) money payable under a pension plan to a retired member or a person as a result of a division under

Section 74 or payable from a prescribed retirement savings arrangement or life annuity that results from a purchase or transfer under

Section 61, 62, 67 or 74 or subsection 96(2) is subject to a garnishment pursuant to the Maintenance Enforcement Act and the prescribed requirements under that Act respecting garnishment; and (

b) a deferred pension or pension benefit of a former member or of a person that results from a division under

Section 74 or a deferred life annuity or prescribed retirement savings arrangement of a person that results from a purchase or transfer pursuant to Sections 61, 62, 67 or 74 or subsection 96(2) is subject to attachment by the Director of Maintenance Enforcement in accordance with the Maintenance Enforcement Act and the prescribed requirements under that Act respecting attachment of a pension entitlement.

(2) Where an amount has been attached by the Director of Maintenance Enforcement as described in clause (1)(b), the administrator shall deduct from the commuted value of the deferred pension, pension benefit or the deferred life annuity or from the money transferred to a prescribed retirement savings arrangement (

a) the cost of complying with the attachment calculated in the prescribed manner; (

b) the total amount of taxes, if any, that are required to be deducted or withheld as a result of the attachment; and (

c) the lesser of (

i) the amount attached, and (ii) the remainder of the commuted value of the deferred pension, pension benefit or deferred life annuity or the remainder of the money transferred to a prescribed retirement savings arrangement.

(3) Where an amount has been attached as described in clause (1)(b): (

a) the person whose entitlement has been attached has no further claim or entitlement to any pension or benefit respecting the amount attached; (

b) the entitlement of a person after the person's entitlement has been attached is calculated on the basis of the commuted value of the person's deferred pension, pension benefit or deferred life annuity after the deduction of the amounts referred to in subsection (2) or the entitlement is the remainder of the money in the prescribed retirement savings arrangement after the deduction of the amounts referred to in subsection (2); and (

c) neither the Administrator nor the plan is liable to any person by reason of having made payment pursuant to an attachment referred to in clause (1)(b). [ 45 ] The assignment or garnishment does not appear to be limited to 50% of the benefit. [ 46 ] There is however no such exception for recovering spousal support or enforcement of property division. [ 47 ] This effectively frustrates enforcement of the Court Order. T he Pension Benefits Act v. the Matrimonial Property Act Source of Confusion [ 48 ] The refusal to comply with the Court Order was based on an

interpretation of

section 61 of the Pension Benefits Act . [ 49 ] Section 61(1), now numbered section 74(1) and (2) as amended by Royal Assent: December 15, 2011 reads as follows: PENSION ENTITLEMENT ON MARRIAGE BREAKDOWN 74

(1) Where a member, former member or retired member is entitled to a pension benefit, deferred pension or pension and the member, former member or retired member and that person's spouse have been living separate and apart and there is no reasonable prospect of the

resumption of cohabitation, the pension benefit, deferred pension or pension earned during the marriage or cohabitation may be dividedin accordance with the regulations between the member, former member or retired member and that person's spouse by an order of theSupreme Court of Nova Scotia, by a written agreement that provides for the division of a pension benefit, deferred pension or pension, orin such other manner as is prescribed.

(2) Notwithstanding subsection (1), the spouse of the member, former member or retired member must not receive more than one half ofthe pension benefit, deferred pension or pension earned during the marriage or cohabitation. Section 4(1) of the Matrimonial Property Act states as follows: 4(1) In this Act, “Matrimonial Assets” means the matrimonial home or homes and all other real and personal property acquired by eitheror both spouses before or during their marriage, with the exception of:….(pensions are not an excluded item) Case Law [50] The discord between

section 74 of the Pension Benefits Act and

section 4 of the Matrimonial Property Act has been the subjectof litigation. [51] In Nova Scotia, matrimonial assets include pensions acquired by either or both spouses before or during their marriage. [52] Flowing from Morash v Morash [2004] N.S.J.

No. 40 we know the following: Under the scheme of the Matrimonial Property Act, R.S.N.S. 1989, c. 275, all assets of the parties, whether acquired before or duringthe marriage, are "matrimonial assets" and subject to prima facie equal division, unless falling within certain narrow exceptions: 4(1) In this Act, "matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired by eitheror both spouses before or during their marriage, with the exception of... [53] In Morash v. Morash the Court reviewed the circumstances where a Court may consider an unequal division.

At paragraph 17the Court said: Pension benefits and pensions in payment are matrimonial assets subject to division. (Lawrence v. Lawrence (1981), (NS CA), 47 N.S.R. (2d) 100 (C.A.) and Clarke v. Clarke, (SCC), [1990] 2 S.C.R. 795).

(22) As a matrimonial asset subject to prima facie equal division (leaving aside consideration of valuation date), pension benefits earnedbefore and during the marriage may only be divided other than equally in accordance with s. 13 of the Matrimonial Property Act. [54] The Court concluded: Absent of factual context supporting unequal division, the Court is not free to exclude from division assets acquired by one party prior tomarriage. [55] Accordingly, Ms. Morash was entitled to an equal share of the pension credits earned prior to the marriage.

[56] Morash v Morash was preceded by Clarke v Clarke [1990] 2 S.C.J. 795. [57] At the time of the Clarke v Clarke decision pension credits were not divisible at source. [58] Division was generally accomplished by an asset trade-off, provided there were sufficient other matrimonial assets tocompensate the non-pensioned spouse. [59] Alternatively, a Trust Order was used obliging the pensioned spouse to hold one half of the pension proceeds in trust for theother. [60] At paragraph 25 of Morash v Morash the Court stated: 25 The cases decided since Clarke v.

Clarke, supra, reveal some confusion and inconsistency in the division of pension credits. (See, forexample, Sangster v. Sangster (1990), (NS SC), 100 N.S.R. (2d) 248; [1990] N.S.J. No. 425 (Q.L.)(S.C.A.D.) andcontrast with Matthews v. Matthews, [2003] N.S.J. No. 500 (Q.L.)(S.C.). This has resulted from a perceived conflict between thePension Benefits Act, R.S.N.S. 1989, c. 340, as amended ("PBA") and the Matrimonial Property Act.

The Pension Benefits Act which"applies to every pension plan that is provided for persons employed in the Province" (s. 4(1)), having been amended since Clarke v.Clarke, supra, now provides: 61

(1) Where a member or former member is entitled to a pension or a pension benefit and (

a) a petition for divorce is filed; (

b) an application is filed for a declaration of nullity; or (

c) the member or former member and that person's spouse or common-law partner have been living separate and apart and there is noreasonable prospect of the resumption of cohabitation, the pension or pension benefit earned during the marriage or the cohabitation ofcommon-law partners may be divided in accordance with the regulations between the member or former member and that person's spouse or common-law partner by an orderof the Supreme Court of Nova Scotia, or in such other manner as is prescribed in the regulations.

(2) Notwithstanding subsection (1), the spouse or common-law partner of the member or former member shall not receive more than onehalf of the pension or pension benefit earned during the marriage or cohabitation of common-law partners. (Emphasis added) 26 This Act applies to both married and common law couples. Section 61(2) restricts "receipt" by the non-pensioned spouse to "one halfthe pension benefit earned during the marriage . . . ". Section 4(1) of the MPA, however, includes as matrimonial assets those acquired"before or during the marriage . . .

". 26 This Act applies to both married and common law couples. Section 61(2) restricts "receipt" by the non-pensioned spouse to "onehalf the pension benefit earned during the marriage..." Section 4(1) of the MPA, however, includes as matrimonial assets thoseacquired "before or during the marriage..." [61] The Court confirmed that it is the Court’s responsibility to rule on “entitlement” and the Pension Administrators areresponsible for the “mechanism for division”. 27 It is my view that the two statutes are not in conflict. It is a principle of statutory

interpretation that different enactments of thesame legislature are to be interpreted harmoniously absent genuine inconsistency. It is presumed that the laws of a legislature make up arational, coherent system. (Pierre-André Côté, the

Interpretation of Legislation in Canada, 3rd ed., (Carswell, 2000) at 342-343). 28 The PBA, in my view, provides no more than a mechanism for division of pension credits at source, with a limit on source division

to fifty percent of the pension benefits earned during the marriage . It is obvious from the wording of the PBA that it does not purport to govern entitlement . Section 61(1) , for example, provides simply that "... the pension or pension benefit earned during the marriage or the cohabitation of common-law partners may be divided in accordance with the regulations...". It does not detail how entitlement is to be determined. Section 61(2), which limits division of benefits, provides only that the non-pensioned party shall not "receive" more than half of the pension credits.

It does not provide that pension credits in excess of fifty percent are not to be considered matrimonial assets. 29 Similarly, the related PBA Regulation expressly recognizes that the spouse's share of the pension benefit must be determined by court order or agreement and, as well, recognizes the Court's jurisdiction, under the Matrimonial Property Act , to order an asset trade-off in settlement of pension benefits: 70

(1) Subject to subsection 61(2) of the Act, a spouse or common-law partner's share of a pension or pension benefit must be determined by a court order or by a separation agreement .

(2) The entitlement date with respect to a spouse or common-law partner must be specified in the court order or separation agreement referred to in subsection (1).

(3) A pension or pension benefit must not be divided under this Part except in accordance with the terms of a court order or a separation agreement referred to in subsection (1).

(4) Nothing in this Part precludes a division of assets pursuant to

Section 13 of the Matrimonial Property Act in settlement of the value of any pension or other benefit under a pension plan if, by reason of the termination of a relationship, the chance of acquiring it would be lost, and if there is an unequal division upon those grounds, this Part shall not apply. 30 I am fortified in my view that the two statutes are not in conflict by the reasoning of the Supreme Court of Canada in Clarke v. Clarke , supra. At the time Clarke was decided ss. 17(1) and 21 of the PBA prohibited alienation (assignment, attachment, charging) of pension benefits or monies paid under a pension plan.

There were similar restrictions in the Canadian Forces Superannuation Act, supra and the Pension Benefits Standards Act and a variety of individual statutes governing federal public service pensions, R.C.M.P. pensions, judges' pensions and diplomatic pensions, to name a few. It was the Canada Forces Superannuation Act that applied to Mr. Clarke's pension. Section 8(6) of that Act provided: 8(6) Except as provided by

Part II of the Garnishment, Attachment and Pension Diversion Act, amounts payable under this Part are not capable of being assigned, charged, attached, anticipated or given as security and any transaction purporting to assign, charge, attach, anticipate or give as security any such amount is void. (Part II of that Act did permit a portion of a pension payment to be diverted in response to a support order) 31 As discussed at para 19 above, the restriction on alienation was central to this Court's determination in Clarke that the pension was not a matrimonial asset.

This rationale was rejected by the Supreme Court of Canada - "s. 8(6) does not place any concrete legal barriers in the way of a finding that pensions are property and therefore matrimonial assets" (at p. 829 per Wilson, J., writing for the Court). In concluding that the restriction on alienation contained in the Canadian Forces Superannuation Act was not in conflict with the provisions of the Matrimonial Property Act , Wilson, J. wrote at pp. 831 - 835:

Is there conflict between a provision prohibiting the attachment of pension payments and a provision including such payments asproperty subject to division between the spouses? If such payments are matrimonial assets is the judge being told to do inconsistentthings -- to protect the payments against attachment for the benefit of the pension recipient and to deprive him of part of the payments forthe benefit of his or her spouse? Would compliance with the Matrimonial Property Act involve defiance of the Canadian ForcesSuperannuation Act?

If the answer to these questions is yes, then there is conflict under the test in Multiple Access Ltd. and theprovincial legislation would be inoperative to the extent of the inconsistency... the language of s. 8(6) [of the Canadian ForcesSuperannuation Act] does not capture what is done when a division of assets is ordered by a court. The

section specifically lists theprohibited acts ["assign, charge, attach, anticipate or give as security"]. It does not include asset division by a Court pursuant tomatrimonial property legislation. . . . ... when a Court does order a division of assets, equal or otherwise, it is not necessarily dealing with the assets in specie. The process ofordering a division of assets is in the nature of an accounting.

The court does not order that the pension be divided, but rather that eachpartner to the marriage should share in the value of the assets accumulated during the union... ... to the extent that a court may in fact deal with the pension in specie, it may only do so when the non-recipient spouse has acquired abeneficial interest in it. Prior to the enactment of the various statutory regimes family assets were dealt with at common law on the basisof the doctrine of the presumption of advancement and the equitable doctrines of resulting and constructive trusts.

These doctrinesproved inadequate in redressing many of the inequities that arose in the context of family property. The provincial legislaturesresponded by enacting various statutory schemes to remedy the problem. A typical feature of these schemes is the deeming of mostproperty items to be matrimonial assets. With the exception of some statutorily excluded items the value of real and personal propertyhas been decreed to be subject to equal sharing by both spouses. For all of the above reasons I find that no conflict exists between the federal and provincial legislation within the meaning of MultipleAccess Ltd.

Neither the order made in this case nor the imposition of a trust results, in my view, in conflict for the reasons given bySeaton J.A. No attempt is being made to alienate the pension qua pension.

The recipient spouse is simply required to pay a certainamount to the non-recipient spouse each month after maturation of the pension. 32 Reasoning by analogy to that in Clarke, it is my view that s. 61 of the PBA does no more than limit a court's power to divide thepension benefits in specie and does not prevent a court from including pre-marriage pension benefits in the pool of matrimonialassets to be divided. 33 Since the decision of the Supreme Court of Canada in Clarke, supra, this Court has consistently held that pension credits earnedbefore and during the marriage (subject to valuation date issues) are a matrimonial asset and subject to equal division, but for theoperation of s. 13 of the Matrimonial Property Act. (See, for example, Yaschuk v.

Logan, supra and MacIsaac v. MacIsaac (1996), 1996NSCA 128 , 150 N.S.R. (2d) 321; N.S.J. No. 185 (QL)(C.A.). [62] Morash v Morash confirmed the Court’s authority pursuant to the Matrimonial Property Act to determine a spouse’sentitlement to pension benefits within the context of a presumptive right to equal division of matrimonial assets both before and duringmarriage relationship. [63] In choosing to achieve a harmonious

interpretation of the two legislative enactments the Court did not indicate a preference forthe Matrimonial Property Act over the Pension Benefits Act or invalidate the provisions in the Pension Benefits Act. [64] There is however, a continuing significant disconnect between the court’s authority to determine entitlement and the formerspouse’s ability to effectively enforce the Order and realize on their entitlement.

This disconnect arises out of the wording in the PensionBenefits Act. [65] This case illustrates the real conflict which continues to complicate and can effectively frustrate a Court ordered division ofpension. [66] The legislative dissonance continues in practice to actively interfered with the Applicant’s ability to collect and enforce a Court

Order. [ 67 ] This rift seriously challenges the conclusion that these two statutes (the Pension Benefits Act with the Matrimonial Property Act ) can be interpreted harmoniously absent legislative intervention. [ 68 ] The actions of the Pension Administrators as sanctioned by the Superintendent of Insurance have placed the Applicant’s entitlement in jeopardy. [ 69 ] The Administrators of the pension fund were able without fear of prosecution to act contrary to an Order of the Supreme Court of Nova Scotia and in doing so they are protected by the Pension Benefits Act from any liability for ignoring the Order. [ 70 ] This places the administration of justice into disrepute. [ 71 ] The office of the Superintendent of Pensions felt compelled to indicate they were unable to effect the terms of the Order; an Order created under the authority of the same legislature that created the Pension Benefits Act . [ 72 ] Throughout the correspondence between the two fund holders and counsel there is confusion in terminology between “entitlement” and the “administrative functions” as set out in the Pension Benefits Act . [ 73 ] In this case the Administrators considered themselves limited by

Section 74 (formerly

section 61 ) of the Pension Benefits Act and thus were unable to effect the division as ordered. [ 74 ] Counsel for the fund holders for NewPage concluded that the award of 35% of the “ entire pension entitlement ” was contrary to

section 61 (now

section 74 ) of the Pension Benefits Act which does not permit awarding more than 50% of the pension benefit accrued during the relationship to be given to the spouse. [ 75 ] He advised that the correct

interpretation of the award as determined by the court has failed to meet the requirements of the legislation and was unenforceable. [ 76 ] He further concluded as follows: “Pursuant to section 61(2) of the Pension Benefits Act Michelle’s legal entitlement to any pension is capped at 50% of the pension benefits accrued during the relationship.” (my emphasis) [ 77 ] Within the context of Morash v Morash, the limitation of the Applicant’s entitlement and the recalculation of her entitlement was an error, confusing entitlement with the Administrative function of division in specie. [ 78 ] Entitlement rests within the jurisdiction of the Court pursuant to the Matrimonial Property Act . [ 79 ] The administrative functions are the responsibility of the Pension Administrators . [ 80 ] While this very real conflict was to be resolved in principle in Morash v Morash realizing on entitlement continues to be frustrated by the wording in the Pension Benefits Act .

[ 81 ] This confusion was again evident in the August 12, 2014 letter from the Consultant on Pension Administration for Morneau Shepell to the Respondent wherein she concluded that “the Court Order was contrary to the Nova Scotia Pension Benefits Act .” [ 82 ] The letter noted that the (former spouse’

s) only entitlement was 50% of the pension benefit accrued during the actual period of marriage (the Act refers to the period of marriage or cohabitation).

They appear to assume the Applicant’s entitlement is 50% of the 1.29 years of pension entitlement. [ 83 ] The consultant advised the Respondent they (independent of the Court Order) determined the Applicant’s entitlement and transferred to her 50% of the pension benefit accrued during the actual marriage. [ 84 ] The formula the administrators used took into consideration the Respondent’s pension entitlement, the pension funding level, his marriage and subsequent separation based on the duration of the marriage and the pension entitlement accumulated during this same period. [ 85 ] This

interpretation, indeed a careful reading of the

section relied upon has the potential to create a bias in favour of common law spouses who’s entitlement could be greater than that of a married couple. [ 86 ] The result of the administrators calculations was an award that was $41,996.90 less than her entitlement as determined by the Court. [ 87 ] The Applicant was compelled to incur further legal costs to enforce her right to the balance up to 35% of the pension earned. [ 88 ] The Court of Appeal confirmed in Morash v Morash that each statute can coexist.

The discord between statutes however continues to exist and effectively sabotages enforcement of the Court’s order under the Matrimonial Property Act . [ 89 ] It is a conflict that must be remedied by clarification from the legislature regarding their intention in the drafting of each piece of legislation followed by an appropriate amendment to eliminate the conflict that permits breach of a Court Order by their own creature of statute, the superintendent of Pensions. [ 90 ] The

Interpretation Act requires applying a broad remedial

interpretation to the Matrimonial Property Act as well as the Pension Benefits Act . [ 91 ] Section 9(5) of the Nova Scotia

Interpretation Act , RSNS 1989, c 235 states: 9(5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matter:

a) the occasion and necessity for the enactment;

b) the circumstances existing at the time it was passed

c) the mischief to be remedied;

d) the object to be attained ;

e) the former law, including other enactments upon the same or similar subjects ;

f) the consequences of a particular

interpretation; and

g) the history of legislation on the subject.

[92] As discussed in Clarke v Clarke, (SCC), [1990] 2 SCR 795 “The [MPA] is accordingly remedial in nature. Itwas designed to alleviate the inequities of the past when the contribution made by women to the economic survival and growth of thefamily was not recognized. [93] In interpreting the provisions of the Act the purpose of the legislation must be kept in mind. The Act must be given a broad andliberal construction which will give effect to that purpose.” Thus a method that allows for broad recognition of matrimonial property isconsistent with the purpose of the Matrimonial Property Act. [94] The intent and purpose of the Pension Benefits Act to the extent it is defined is set out in the

preamble of the Act: 1. WHEREAS the Government of Nova Scotia wishes to promote the development of an environment in which pension promises willbe fulfilled; 2. AND WHEREAS greater transparency of information about pension plans will assist members, former members and retiredmembers in making informed decisions about their pension plans; and 3.

AND WHEREAS the Government of Nova Scotia intends to promote and facilitate the implementation and continuation of pensionplans. [95] Presumably the intent was to protect a pensioner or future pensioner from destitution arising out of unlimited judgementrecovery at a time in their lives when economic recovery through employment is no longer possible. [96] The Pension Benefits Act R.S.O. 1990, c.P8 has created a remedy that allows attachment of pension benefits in accordance withtheir Family Law Act that permits enforcement of support arrears (apparently inclusive of spousal support). [97] Their prohibition in the Pension Benefits Act against assignment reads as follows: Void transactions 65.

(1) Every transaction that purports to assign, charge, anticipate or give as security money payable under a pension plan is void. R.S.O. 1990, c. P.8, s. 65 (1). 1 Idem

(2) Every transaction that purports to assign, charge, anticipate or give as security money transferred from a pension fund in accordancewith

section 42 (transfer), 43 (purchase of pension), clause 48 (1) (b) (pre-retirement death benefit),

section 67.3 (transfer of a lump sumfor certain family law purposes), 67.4 (division of a pension for certain family law purposes) or subsection 73 (2) (transfer rights on windup) is void. R.S.O. 1990, c. P.8, s. 65 (2); 2009, c. 11, s. 46 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 65 (2) of the Act is amended by striking out“section 42 (transfer), 43 (purchase of pension), clause 48 (1) (b) (pre-retirement death benefit),

section 67.3 (transfer of a lump sum forcertain family law purposes), 67.4 (division of a pension for certain family law purposes)” and substituting “section 39.1 (variablebenefits), 42 (transfer) or 43 (purchase of pension), clause 48 (1) (b) (pre-retirement death benefit),

section 67.3 (transfer of a lump sumfor certain family law purposes) or 67.4 (division of a pension for certain family law purposes)”. (See: 2015, c. 20, Sched. 34, s. 3 (1)) 2 Exemptions (3) Subsections (1) and (2) do not apply to prevent the assignment of an interest in money payable under a pension plan or moneypayable as a result of a purchase or transfer under

section 42, 43, clause 48 (1) (b),

section 67.3 or 67.4 or subsection 73 (2) by an orderunder the Family Law Act, by a family arbitration award or by a domestic contract. 2009, c. 11, s. 46 (2).

[98] The Ontario Court of Appeal placed limits on the extent of recovery in Trick v Trick (ON CA), [2006] O.J.No. 2737. The Decision of the Ontario Superior Court under appeal vested in a spouse owed ½ of a million dollars in unpaid support,100% of the payor’s CPP and OAS benefits. [99] The Pension Benefit Act R.S.O. 1990, c.

P 8 allowed only 50% of the husbands pension and ½ CPP and OAS benefits to begarnished for support arrears. [100] The Ontario Pension Benefit Act and Family Law Act R.S.O.1990, c.F.3 have a harmonious definition of value which is restrictedto benefits earned during the marriage. [101] The Court recognized the purpose of the exemption from seizure except for child support arrears to a limit of 50 % of the benefitsearned during the marriage in accordance with the Family Law Act. [102] The Court of Appeal noted the Order contravened ss. 66(4) of the Ontario Pension Benefits Act which restricted execution againsta pension benefit to enforce a support order to a maximum of 50%.

Order for support

(4) Despite subsection (1), payments under a pension or that result from a purchase or transfer under

section 42 or 43, clause 48 (1) (b),section 67.3 or 67.4 or subsection 73 (2) are subject to execution, seizure or attachment in satisfaction of an order for support enforceablein Ontario to a maximum of one-half the money payable. R.S.O. 1990, c. P.8, s. 66 (4); 2009, c. 11, s. 47 (3). [103] The order did not fall within section 65(3).

The spouse was only entitled to garnish ½ of the pension benefits. [104] Relating to the garnishment of the CPP and OAS benefits the Court was restricted to section 23(1) of the federal Family Ordersand Agreements Enforcement Assistance Act which caps at 50% the garnishment of a payers income source including disability,retirement or other pension. [105] To further frustrate recovery, the Ontario Court of Appeal in Trick v Trick (March 31, 2006) disallowed a vesting order as aremedy to secure a spouse’s entitlement: …even if a vesting order is available in equity, that relief should be refused where it would conflict with specific provisions of the PBA.This is particularly so because the eligibility of pensions is fraught with social and political policy issues, issues that are better-suited forthe legislature than the courts.

Accordingly, I would allow the appeal and set aside the vesting order. These conclusions follow from a consideration of the legislation, although the wording of the legislation and the interaction between theapplicable statutes are by no means straightforward. [106] Thus, for each Provincial Legislature it becomes an issue of setting priorities among potentially vulnerable citizens. [107] These incremental amendments do not solve the problem of property division, pension division and attachment for security forNova Scotia’s that respects the Matrimonial Property Act nor the Court’s

interpretation of the evolution of spousal property division asexplained by the Nova Scotia Court of Appeal. [108] The legislature needs to take an active role in providing a remedy. [109] Legislative amendment to the Pension Benefits Act appears to be necessary to reconcile and give effect to Morash v Morash inorder to facilitate enforcement of a Court’s Decision in matrimonial pension divisions

[ 110 ] Without legislative amendment there is no fail-safe method of protecting the interests of the entitled spouse. [ 111 ] The member funds are treated in a more secure manner than those of the Applicant former spouse; creating an imbalance in power between partners in a marital relationship. [ 112 ] Given the Administrators are immune from any failure to protect or respond to the Applicant’s interest, the Applicant is further limited by the Respondents unimpeded selection of payment options once he is able to draw from his pension [ 113 ] The Pension Benefits Act prohibits enforcement or payment to a person entitled to receive a portion of a pension by reason of a pension division. [ 114 ] As a result of this continuing discord in Nova Scotia, Pension Administrators are free to pay out to one spouse or transfer in accordance with the Pension benefits Act a members benefits even when those benefits properly belong to a spouse or former spouse. [ 115 ] The Applicant’s portion of the pension was placed in jeopardy because the Court Order was ignored even after the Administrators received notice of the Applicant’s interest. [ 116 ] The Superintendent of Pensions and the Administrators of the pension funds indicate they are bound by the Pension Benefits Act and were unable or unwilling to effect the necessary division in light of the Pension Benefits Act . [ 117 ] The Fund Administrators went one step further. [ 118 ] In attempting to operate solely within the bounds of the Pension Benefits Act and create a more equitable result they redesigned the Applicant’s entitlement to 50% of the benefits earned during the marriage. [ 119 ] On the one hand it is important to recognize the obstacles facing Fund Administrators in light of the prohibition in the Pension Benefits Act . [ 120 ] It is quite another to permit Fund Administrators to make their own decision as to entitlement and to deal with and transfer funds which have been determined to be the property of a spouse or former spouse thereby placing the recovery of the Applicant’s funds in jeopardy. [ 121 ] Morash v Morash might be more fairly seen as a judicial response in the evolution of Family Law principles as expressed when the legislature provided a formula that verified and quantified the non-monetary contribution of partners to the prosperity of family life. [ 122 ] Morash v Morash responded in harmony with the legislative intent then expressed in the Matrimonial Property Law to endorse the legislative approach. [ 123 ] It ought not to be seen as an end in itself if the law is to remain alive and able to gradually and prudently respond to our cultural evolution. [ 124 ] The solution to this impasse is not judicial it is legislative. [ 125 ] The solution requires legislative analysis that includes a discussion on entitlements arising from a couple relationship already prescribed within the Matrimonial Property Act .

[126] The Act is in place to ensure fair and conscionable division that can hold accountable partners including pensioners in accordancewith the values of Nova Scotians as legislatively balanced between and among the rights of children, partners and pensioners. [127] The values of each legislative piece address the desire to protect the individual from destitution . An amendment must weigh andbalance the competing interests to achieve the desired result.

Effecting the Division Creating a Trust [128] The remedy left to the Applicant is less than satisfactory. [129] Absent appropriate legislative amendment to protect the former spouse’s entitlement under the Matrimonial Property Act, theformer spouse is left to resolve this issue by the creation of a trust relationship in a partnership that has already been dissolved. [130] In Robertson v. Robertson [2007] N.S.J.

No. 195, 2007 NSSC 128, the Court granted an equal division of the parties' pensions[including, but without limiting the forgoing, all pension benefits earned through employer contributions, employee contributions,indexing, life expectancy and interest] from the dates of plan entry until the date of separation, together with all indexation, interestand other benefits accruing on that portion of the pensions which existed prior to separation to the date of division, in keeping withMorash v. Morash [2004] N.S.J.

No. 40, 2004 Carswell NS 42 (C.A.) at para. 33. [131] The Court set out the following relief: In the event the Pension Administrators of the Pension Plans of the parties are unable or unwilling to implement the terms of this Order,the party in whose name the pension is held shall be the Trustee for the other party to the fullest extent required to provide theother party with the benefits and rights contemplated in this decision.

The Pension Administrators are authorized to provideeither party with any and all information and documentation requested respecting the pension of the other party for the periodsubject to division without the consent of the party in whose name the pension is held. [132] In Shaw v. Shaw [2009] N.S.J. No. 559, 2009 NSSC 353, the Court granted an equal division of the pensions held in the name ofMr.

Shaw, with the Department of National Defence and with the School Board, from the date of plan entry until the date ofseparation, together with any increase in the value of the pensions by virtue of indexation, interest, or otherwise. I recognize that in sodoing, I have captured a portion of the military pension which was earned prior to the marriage. [133] This is in keeping with the provisions of s. 4(1) of the Matrimonial Property Act and Morash v. Morash 2004 NSCA 20, perBateman, J.A. 24 If the Pension Administrator is unable or unwilling to comply with the provisions of this Order, which is anticipated, Mr.

Shaw willact as trustee on behalf of Ms. Shaw to the extent necessary to ensure that Ms. Shaw receives one-half of the gross military pension inpay, such that each party receives $653.67 gross per month commencing on December 1, 2009. Until such time as the pension is dividedat source, Mr. Shaw, as trustee, will pay Ms. Shaw $653.67 per month. If after the source division of the pension, Mr. Shaw continues toreceive more than $653.67 per month in gross pension income, Mr. Shaw, as trustee, will pay Ms. Shaw the difference between themonthly gross military pension that he is receiving and $653.67.

The Court retains jurisdiction to set the monthly pension amount duepursuant to this formula once the pension has been divided at source. Each party is responsible for the income tax consequencesassociated with their half share of the gross pension as per Yaschuk v. Logan (1992), (NS CA), 110 N.S.R. (2d) 278(C.A.) [134] More recently in S.S., and D.S., [2013] N.S.J. No. 684 2013 NSSC 384 Mac Adam J ordered the division of the pension of S.S onthe following terms:

(1) The Pension Administrator will forthwith equally divide all pension benefit credits, including, but without limiting the generality of

the forgoing, all pension benefit credits earned through employee contributions, employer contributions, indexing, life expectancy, and interest between, between Ms. S. and Mr. S., from the date of the marriage until the date of separation.

(2) Ms. S. will be the trustee for Mr. S. with respect to the 40 percent of the pre-marriage pension accumulation to which he is entitled.

(3) If the pension administrator is unable or unwilling to implement these terms, Ms. S. will be the trustee for Mr. S. to the fullest extent required to provide Mr. S. with the benefits and rights contemplated by this decision.

(4) In the event of a dispute (inter parties or with the Pension Plan Administrator) with respect to the

interpretation or implementation of this order, the Parties or Pension Plan Administrator may apply to the Court for directions respecting the dispute and the court retains jurisdiction to provide directions to resolve the dispute.

(5) Each party will have access to information, communication and documentation respecting the pension. [ 135 ] This solution is less than satisfactory given it depends entirely on the cooperation of the plan member and does not guarantee that in future the entitlement will be realized. [ 136 ] Further, there appears to be no authority to impose a trust relationship on the fund administrators and in this instance they were not parties to the action. [ 137 ] The absence of legislative amendment to address this resulted in the necessity of further litigation.

As much as the Respondent appeared willing to comply the management of the funds was outside his control. [ 138 ] The course of events following the Divorce Proceeding effectively capped the Applicant’s ability to realize on her entitlement to a percentage of that which accrued during the course of the relationship to $2,822 as opposed to 35% of the entire pension which would have amounted to $44, 818.9 at the time of the actual transfer. [ 139 ] The office of the Superintendent of Pensions is a creature of statute. 11

(1) A Superintendent of Pensions, who is the chief administrative officer, and such officers and employees as are necessary to enable the Superintendent to perform the duties of the Superintendent shall be appointed in accordance with the Civil Service Act.

(2) The Superintendent, in exercising and performing the Superintendent's functions, duties and powers pursuant to this Act and the regulations, shall act in accordance with the directions of the Minister. 12 The Minister may engage the services of counsel, actuaries, accountants and other experts to: (

a) advise the Superintendent in respect of such matters as the Minister considers necessary for the efficient carrying out of the Superintendent's duties and functions pursuant to this Act; and (

b) carry out the functions and for the purpose set out in

Section 124 of this Act. 13 The Superintendent shall (

a) promote the establishment, extension and improvement of pension plans throughout the Province; (

b) make recommendations to the Minister in respect of pension plans throughout the Province; (

c) supervise all persons who establish or administer a pension plan within the meaning or this Act and all employers or other persons who on an employer's behalf are required to contribute to any such pension plan; and (

d) perform such functions and discharge such duties as are assigned from time to time by the Governor in Council or the Minister. [ 140 ] The legislative branch of government designed both the Matrimonial Property Act and The Pension Benefits Act .

[ 141 ] The costs of this ongoing confusion and lack of a fail-safe is unfortunately borne by the parties. [ 142 ] The Superintendent of Pensions does have a legislated duty to make recommendation to the Minister and the Legislative Branch of Government. [ 143 ] It seems reasonable that the Superintendent ought to make recommendations to ensure a harmonious

interpretation is possible between the Pension Benefits Act and the Matrimonial Property Act . [ 144 ] It seems reasonable that the legislative directives should permit fund members to respect and comply with Court Orders under the Matrimonial Property Act . [ 145 ] The solution to this problem and the apparent frustration of enforcement of a Court Order rests with the legislature. [ 146 ] Such a solution would also achieve the spirit and intent of the Matrimonial Property Act . Relief [ 147 ] On November 27, 2015 the Applicant commenced this action seeing enforcement of the Order in the following manner:

a) Creation of a trust wherein Mr. Morgan holds Ms. McKearney-Morgan’s portion of the undivided pension in trust for the benefit of Ms. McKearney-Morgan; and

b) Preservation of the jurisdiction of the Court to resolve matters relating to the implementation of the pension division when the pension matures. [ 148 ] When it became apparent the Administrators felt they were unable to comply the Respondent was asked if he would agree to act as trustee of Applicant’s share to avoid the necessity of proceeding to a hearing with the associated costs. [ 149 ] The Respondent was only prepared to act as trustee if ordered by the Court to do so. [ 150 ] Thus, in the absence of consent, a hearing was necessary. [ 151 ] This is not a rehearing of the divorce and matrimonial property division.

The decision granting the Applicant a 35% interest in the Respondents pension contains the reasons for that division. [ 152 ] Given the position adopted by Fidelity and the Superintendent of Insurance, the Court Orders the following to protect the interest of the Applicant, in accordance with the Corollary Relief Judgement and Pension Order dated March 12, 2013. [ 153 ] The Applicant is entitled to the remaining 33.54% of her funds held in LIRA #56449416 held by Fidelity Investments. [ 154 ] Absent apparent authority to impose a trustee relationship on the Administrators and fund holders the next best solution is to impose trust obligations on the Respondent.

[ 155 ] While not fail-safe there are consequences which flow from any failure to comply. [ 156 ] This Order is to be read in conjunction with the Corollary Relief Order and the Pension Order dated March 13, 2013: 1. The Administrator of the Pension Benefits Plan shall from time to time do all acts as are necessary to enforce this Order and for such purposes the Administrator is given full power and authority to administer the Pension Benefits Plan so as to enforce the terms of this Order. 2. In the event of dispute (inter-parties or with the Administrator) about the

interpretations of this Order, either party may apply to this Court for direction and for further order or to a Court of competent jurisdiction in the province in which the administration of the Pension Plan operates in order to effect the equal division of the plan in accordance with the period subject to division. 3. As a result of the Order dated March 2013 the Applicant now holds a (33.54%) interest in the pension funds transferred from NewPage to Fidelity to the extent of her entitlement as determined by Court Order. 4.

The Applicant shall be entitled to receive her 33.54 % from the dates of plan entry until the date of separation , together with all indexation, interest and other benefits accruing on that portion of the pension which existed prior to separation to the date of division, without the necessity of obtaining the consent of the Respondent before any other payment are made to a surviving beneficiary or spouse. 5. The non-plan member spouse’s share of the plan member’s Pension Plan Benefits, is declared to be the non-plan member spouse’s property. 6.

Upon the payment by the Administrator for the Pension Plan of the non-plan member spouse’s share to, or on behalf of, the non- plan member spouse pursuant to this Order, the non-plan member spouse shall have no further interest in the Pension Plan. 7. If one party receives any of the other's share, he or she shall hold such amount in trust for the other party and shall forthwith pay it to the other party. 8.

In the event the non-plan member spouse dies prior to the payment or transfer of the non-plan member spouse’s share, the non- plan member spouse’s share shall be the property of the non-plan member spouse’s estate. 9. The Respondent John Bernard Morgan shall be the Trustee for the 35% interest that the Applicant has as a result of the Corollary Relief Judgement, dated March 12, 2013, to the fullest extent required to provide the Applicant with all the benefits and rights contemplated in the Corollary Relief Judgement and Pension Order. 10.

Neither the Respondent nor Fidelity Investments shall do any act or perform any function that will prejudice the interest of the Applicant’s interest. 11. The Respondent shall deliver to the Applicant copies of all communications between himself and the Administrators of the LIRA account with regard to the Respondent’s pension rights or any other benefit derived thereunder within 5 days after the communications. 12. A certified copy of this Order shall be filed with the Administrator of the Pension Plan. 13.

The Respondent shall also forward to the Superintendent of Pensions, the Administrators of his pension funds (both Morneau Shepell and Fidelity Investments or any other appointed administrator of the pension or LIRA) a copy of this Order and shall draw their attention to the provisions in this Order dealing with the division and administration of the funds and the

Applicant’s entitlement. 14. The Pension Administrators are authorized to provide the Applicant or her representative or counsel with any and all information and documentation requested respecting the pension investments of the Respondent for the period subject to division which is to say from the dates of plan entry until the date of separation, together with all indexation, interest and other benefits accruing on that portion of the pension which existed prior to separation to the date of division, without the necessity of obtaining the consent of the Respondent. 15.

Any provision of the Pension Plan that operates so as to index the amount payable under the plan shall apply to the pension benefits held by the Administrator of the funds which are the property of the Applicant as a result of the Corollary Relief Judgement dated March 12, 2013 as a result of this Order. 16. If the Respondent chooses to reinvest the funds held in the LIRA in a further locked in account the Applicant shall be given notice of this and an opportunity to withdraw her funds prior to the funds being reinvested. 17.

Should the Respondent die before the Applicant receives her portion of the LIRA, the Applicant shall be considered the surviving spouse notwithstanding any other beneficiary designation or direction should another person qualify as a surviving spouse under the terms of the LIRA. 18. The Respondent shall ensure that the interest of the Applicant as set out in this Order is protected from any contrary direction and shall himself within 15 days of the date of this order provide to Fidelity trust an irrevocable beneficiary designation to the extend the Applicant’s interest as declared in this Order. 19.

The Respondent shall refrain from making any elections, designations, nominations or other directions under the LIRA that would in any way affect the Applicant’s share of the LIRA funds without first obtaining the consent in writing of the Applicant. 20. The Respondent shall whenever able to do so under the terms of the LIRA sever the LIRA into two parts one for himself and one for the Applicant with her share being calculated as 33.54 % of the total value of the LIRA funds. 21.

The Respondent shall authorize the Administrator of the pension funds to provide information to the Applicant as requested by her from time to time relating to her rights and interests in the LIRA and any other benefits deriving therefrom. 22. Should the Respondent die before the LIRA has matured and before the Applicant has received her full entitlement and a third person is beneficiary to the extent it interferes with the interests of the Applicant, the Applicant’s interest is enforceable against the estate of the Respondent. 23.

The Applicant shall indemnify the Respondent and save him from any tax liability attributable to her share of the LIRA once received. 24. The Administrator of the Pension Plan shall from time to time do all such acts as may be necessary to enforce this Order, and for such purposes the Administrator is hereby given full power and authority to administer the Pension Plan so as to enforce the terms of this Order. 25.

The breach of the terms of this Order shall entitle the Applicant to any and all legal remedies available, including an order for contempt with the remedies flowing therefrom. _______________________ Justice Legere Sers