DANIE PITRE Applicant , - v. -, 2023 NBKB 56

2023 NBKB 056 Court File Number: FDB-204-2014 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: DANIE PITRE Applicant , - and - ERIC THÉRIAULT Respondent . DECISION BEFORE: Justice Michelle Boudreau-Dumas. AT: Bathurst, New Brunswick.

DATE OF HEARING: March 3, 2023 DATE OF DECISION: April 11, 2023 APPEARANCES: Jason Godin, for the Applicant; Linda Boudreau, K.C., for the Respondent [TRANSLATION] Boudreau-Dumas, J. OVERVIEW 1 . Ms. Pitre and Mr. Thériault lived as common-law partners for about 19 years. They separated in December 2013. 2 . The parties settled their differences by means of a Separation Agreement, which was approved in a Consent Order. Both documents are dated February 21, 2017. 3 . Ms. Pitre applied to split Canada Pension Plan credits on March 26, 2020.

The Minister of Employment and Social Development refused her application, as more than four years had passed since the couple’s date of separation. In addition, Mr. Thériault would not sign the written statement required to waive the time limit. 4 . Ms. Pitre appealed to the General Division of the Social Security Tribunal. This application was summarily dismissed. The Appeal Division also denied leave to appeal the Tribunal’s decision. 5 . This motion was filed to compel Mr. Thériault to sign the statement. This would allow the federal government to proceed with Ms.

Pitre’s application and split the Canada Pension Plan credits. 6 . Mr. Thériault opposes the application. ISSUES A . Should Mr. Thériault be compelled, based on the provisions of the Consent Order dated February 21, 2017, to sign the waiver required for Ms. Pitre’s Canada Pension Plan credit splitting application to be completed? B . Should costs be awarded to the successful party? LAW

A . Should Mr. Thériault be compelled, based on the provisions of the Consent Order dated February 21, 2017, to sign the waiver required for Ms. Pitre’s Canada Pension Plan credit splitting application to be completed? 7 . For the reasons that follow, my decision is that he should not. 8 . Paragraph 11 of the Separation Agreement incorporated into the Consent Order states as follows with respect to the splitting of Canada Pension Fund credits: [TRANSLATION] 11 CANADA PENSION FUND [1] Each of the parties may apply to split pensionable credits under the Canada Pension Plan with respect to accumulated credits. 9 .

Among other things, Ms. Pitre maintains that: - The purpose or intent of the provisions of this Consent Order is that they be liberally construed in every respect. [2] - The Separation Agreement (incorporated into the Consent Order) is effective and enforceable and is a full and final settlement of any rights that may flow from the relationship. [3] - Paragraph 22(

a) of the Separation Agreement (approved by the Consent Order) states that each partner shall sign and deliver to the other, as required, any document that the other has good reason to request in order to give effect to the provisions of the Agreement. [4] - The parties expected that the Canada Pension Fund credits would be split when they ratified the Agreement, so no harm would arise from requiring the document to be signed. In addition, there is no expiry date on the Consent Order or para. 11 of the Separation Agreement. - Mr.

Thériault should honour the intention of the parties in executing their Agreement (i.e., the division of the credits (para. 11) and each party being required to sign any document to give effect to the Agreement (para. 22(a)) and sign the waiver so that Ms. Pitre’s application (to split the Canada Pension Fund credits) can be completed. 10 . Mr. Thériault, on the other hand, argues as follows: - Credit splitting is not mandatory and is subject to a federal statute. Ms. Pitre, having failed to submit her application within the time limit fixed by the Act, is not entitled to it. - The purpose of para. 22(

a) is to compel a party to sign a required document, not to comply with an optional request. 11 . Paragraph 11 of the Separation Agreement approved in the Consent Order states that each of the parties “ may ” apply to split credits. It is an optional rather than a mandatory provision. Under the Agreement, it is a right (may) rather than an obligation (shall). This is quite different. I therefore cannot find that the parties expected credit splitting to take place when they signed the Agreement. At best, they were given the option to apply for credit splitting. For example, Mr. Thériault did not avail himself of this right under the Order, like many other former partners.

12 . The end of the same paragraph reads [TRANSLATION] “ under the Canada Pension Plan .” This provision of the Consent Order is therefore subject to the Canada Pension Plan . [5] Paragraph 55.1(1)(

c) of the Act outlines the circumstances in which a division of unadjusted pensionable earnings will take place for common-law partners. It reads as follows: 55.1(1) […] (

c) in the case of common-law partners, following the approval by the Minister of an application made by or on behalf of either former common-law partner, by the estate or succession of one of those former common-law partners or by any person that may be prescribed, if (ii) the application is made within four years after the day on which the former common-law partners commenced to live separate and apart or, if both former common-law partners agree in writing, at any time after the end of that four-year period. 13 . Ms.

Pitre’s application was refused based on subpara. (ii), as more than four years had passed between the parties’ date of separation (December 2013) and the date of the application (March 26, 2020). In addition, Mr. Thériault did not agree to sign the waiver that would allow the Minister to proceed with his former partner’s application. 14 . Counsel for Mr. Thériault submitted a decision of the General Division of the Social Security Tribunal, DP v. Minister of Employment and Social Development [6] and a decision of the Appeal Division of the Social Security Tribunal, DP v.

Minister of Employment and Social Development [7] , in support of her client’s position. 15 . Both proceedings brought by Ms. Pitre seeking a division of pension credits were dismissed. However, Ms. Pitre made no mention of these proceedings in the documents filed in this Court or in her counsel’s initial argument. Yet this information is relevant, and I find that she should have referred to it. 16 . The General Division Tribunal explained its decision to dismiss Ms.

Pitre’s appeal of the Minister’s decision as follows: [8] [12] To clarify, even though the Appellant obtained an order granting the credit split, this split was to be done under the CPP, as

section 11 of the order indicates. In other words, to get the credit split, an application had to be made in accordance with the CPP. Additionally, according to the CPP, this split was mandatory, so she could apply had [sic] obtaining an order because she was entitled to it. [13] I understand that the Appellant says that the order does not indicate the date to apply and that she was not informed that there was a deadline to apply. However, as a legislative body, the Tribunal has only the powers that the law gives it. I therefore have to interpret and apply the provisions as they are set out in the CPP.

Unfortunately, since the Appellant’s credit split application was received on March 26, 2020, after the September 30, 2017, deadline, the application for a CPP pension credit split cannot be approved unless the two common-law spouses sign a statement or agreement waiving the four-year period. 17 . The Appeal Division of the Tribunal upheld the General Division’s position and dismissed Ms. Pitre’s application. Paragraphs 14, 15, 16 and 17 include the following by way of explanation: [9] [14] The essential facts of the case aren’t in dispute.

The Applicant and her former spouse were in a common-law relationship from June 1994 to October 2013. Footnote8 The Applicant applied for a pension credit split in March 2020, long after the end of the four-year period set out in the law. There was no agreement between the Applicant and her former spouse to split pension credits. [15] Nothing in the law allows the General Division to ignore the rules about the approval of a pension credit split.

The Applicant hasn’t met the time requirements for applying for a pension credit split. [16] The Applicant says that the Court order has no deadline and that she could not apply before the date of the order because she didn’t know whether she was entitled to it.

[17] The Court order doesn’t allow the Minister to ignore the terms of the CPP. On the contrary, the split must be done under the terms of the CPP. Furthermore, the CPP establishes the Applicant’s entitlement to a pension credit split, not the Court order. 18 . I concur with the reasoning of the federal tribunals. I cannot circumvent the Canada Pension Plan [10] and allow Ms. Pitre’s credit splitting application. The only way her application can proceed is with Mr. Thériault’s agreement (signature on the waiver form). Which he refuses to give. This is why Ms.

Pitre is asking that her former partner be compelled to sign the document. 19 . I am not satisfied that the terms of the Separation Agreement approved in the Consent Order authorize me to compel Mr. Thériault to sign the document required for Ms. Pitre to proceed with her credit splitting application. 20 . Paragraph 22(a) [11] of the Agreement states that [TRANSLATION] “Each partner shall sign and deliver ... any document that the other has good reason to request.” The language used is imperative and therefore related to mandatory, not optional, actions. For example, para. 4(

i) of the Agreement provides that Mr. Thériault shall transfer to Ms. Pitre a $25,000 RRSP. Since this is a requirement and not a choice, Mr. Thériault could be compelled to sign any document to effect this transfer if he refused to do so voluntarily. Mr. Thériault was not required to sign any document to give effect to the credit split when the Agreement was signed, as the split was a right and not an obligation. That being the case, he cannot be compelled to do so now. 21 . Mr. Thériault’s signature is now needed because Ms.

Pitre failed to meet the requirements of the Canada Pension Plan . [12] Unfortunately, the consequences of her inaction fall on her and cannot be transferred to her former partner. 22 . Ms. Pitre mentions that she was unaware of the four-year limit. Ignorance of the law is not a defence. I concur with the comments of the Appeal Division of the Tribunal in this regard, which are found at para. 18 of its decision: [13] [18] The Applicant also notes that she paid a lawyer a fairly high fee to make sure that her separation was handled appropriately.

The Applicant can therefore sue her lawyer for failing to properly advise her. 23 . Under para. 23 of the Separation Agreement approved in the Consent Order, [14] Ms. Pitre acknowledges that she: [TRANSLATION]

b) understands the scope of this Agreement;

c) has received legal advice from counsel separate from counsel for the other party.

d) understands her respective rights and obligations under this Agreement. 24 . Accordingly, Ms. Pitre is deemed to understand the limitation imposed by the Act on her application for a Canada Pension Fund credit split and the optional nature of that application. 25 . For all the above reasons, Ms. Pitre’s motion is dismissed. B Should costs be awarded to the successful party? 26 . The provisions of Rules 59.01 [15] and 59.02 [16] deal specifically with the issue of costs. Justice B. M. Robichaud reviewed the relevant family-law case law on costs. [17] 27 . In this instance, Mr.

Thériault was successful across the board. Ms. Pitre failed to disclose the other proceedings she brought in connection with this case, knowing full well that she had been unsuccessful. Although the hearing in this matter was not lengthy, Mr.

Thériault still had to retain counsel to represent him and prepare the documents required to defend the proceeding. In the circumstances, costs are awarded to Mr. Thériault in the all-inclusive amount of $500.00. ____________________________________________________ Michelle Boudreau-Dumas, Judge of the Court of King’s Bench