2010 ONSC 6271, 2010 ONSC 6271

King v. King (also known as Raines) et al. [Indexed as: King v. King] 103 O.R. (3d) 156 2010 ONSC 6271 Ontario Superior Court of Justice, Cornell J. November 25, 2010 Family law -- Domestic contracts -- Separation agreement containing release by wife of any claim or interest in husband's OMERSpension -- Release not mirroring "prescribed form" referred to in s. 46(1) of Pension Benefits Act -- Release not sufficient to constitutewaiver of wife's entitlement to survivor's pension under s. 46(1) of Act -- Pension Benefits Act, R.S.O. 1990, c. P.8, s. 46(1).

Pensions -- Survivor's benefits -- Waiver -- Separation agreement containing release by wife of any claim or interest in husband'sOMERS pension -- Release not mirroring "prescribed form" referred to in s. 46(1) of Pension Benefits Act -- Release not sufficient toconstitute waiver of wife's entitlement to survivor's pension under s. 46(1) of Act -- Pension Benefits Act, R.S.O. 1990, c. P.8, s. 46(1).

The parties entered into a separation agreement in 1992 which contained a release by the respondent of any claim or interest in theapplicant's OMERS pension and a provision requiring the parties to execute any documents required to give effect to the terms and intentof the agreement. The applicant remarried. He brought an application for a declaration that the respondent had waived her entitlement tohis OMERS survivor's pension. Held, the application should be dismissed.

The "first instalment" of the pension within the meaning of s. 44(1) of the Pension Benefits Act was due in January 1992, when theapplicant retired. The respondent was his spouse at that time. Accordingly, the pension became a "joint and survivor pension" within themeaning of s. 44 of the Act.

The release contained in the separation agreement, coupled with the requirement that each party wouldexecute any documents required to give effect to the terms of the agreement, was not sufficient to satisfy the exemption requirementscreated by s. 46(1) of the Act as the release did not mirror the "prescribed form" referred to in s. 46(1). In view of the failure to strictlycomply with the Act, the applicant was unable to make use of the exemption created by s. 46(1). [page157] APPLICATION for a declaration that the respondent had waived entitlement to the survivor's pension. Cases referred to Smith v.

Casco Inc., [2010] O.J. No. 2048, 2010 ONSC 2584, 264 O.A.C. 164, 319 D.L.R. (4th) 641 (Div. Ct.), consdOther cases referred to Kendall v. Canadian Multi Employer Retirement Fund for the Graphic Arts Media, [2008] O.J. No. 4711, 71C.C.P.B. 233, 172 A.C.W.S. (3d) 780 (S.C.J.); Smiley v. Ontario (Pension Board), (ON SC), [1994] O.J. No. 1674,116 D.L.R. (4th) 337, 6 C.C.P.B. 166, 4 R.F.L. (4th) 275, 48 A.C.W.S. (3d) 861 (Gen. Div.) Statutes referred to Pension Benefits Act,R.S.O. 1990, c.

P.8, ss. 1(1) [as am.], 44 [as am.], (1) [as am.], 46 [as am.], (1) [as am.] Rules and regulations referred to R.R.O. 1990,Reg. 909 (Pension Benefits Act), Form 3 [rep. 144/ 00, s. 33] Richard Guy, for applicant. Jerome C. Gardner, for respondent Marlene King. No one appearing, for respondent OMERS. [1] CORNELL J.: -- This is an application brought by Robert King ("Mr. King") for a declaration that his former wife, Marlene King(now Raines) ("Mrs. Raines"), has waived her entitlement to his OMERS survivor's pension. For the reasons which follow, theapplication is dismissed.

Issue [2] The narrow issue in this case is whether a general pension release in a separation agreement is sufficient to constitute a waiver ofMrs. Raines' entitlement to Mr. King's survivor's pension. Facts [3] Although served with the material, OMERS filed a letter indicating that they would not be appearing as they would abide by theoutcome of the application, provided no costs were awarded against them. [4] Robert King and Marlene Raines were married on December 28, 1983. They separated on July 16, 1992. Mr.

King retired on January31, 1992, with a result that his pension was in pay at the date of separation. [5] The parties entered into a Separation Agreement dated November 24, 1992. [6] Paragraph 14 of the Separation Agreement provides as follows: [page158] 14. SAVINGS PLANS, R.R.S.P. PLANS AND PENSION PLANS (

a) The husband shall be entitled to the sole use, ownership and benefit of all savings accounts, R.R.S.P. accounts, and pension plansregistered in his name as at the date of the separation, free of any claim or interest therein by the wife. Included in such assets are thehusband's OMERS Pension Plan, any GIC's and term deposits registered in the husband's name, and any bank accounts and R.R.S.P.sregistered in the husband's name. [7] Paragraph 24 of the Separation Agreement provides:

24. GENERAL (

a) The husband and wife will each execute any documents required to give effect to the terms and intent of this agreement. [8] Mr. King remarried. As part of his estate plan, he wrote to OMERS to appoint his new wife, Dominique Viau, as his beneficiary andto seek confirmation that his survivor's pension would be paid to his new wife. OMERS replied by letter indicating that the SeparationAgreement "does not clearly state that each party, or particularly a former spouse, relinquishes their entitlement to survivor benefits aseligible spouse that took effect when the pension first commenced".

The OMERS letter went on to indicate that if OMERS Form 156were to be completed by Mrs. Raines and returned to OMERS, they would accept that as sufficient evidence that she had relinquished herright to a survivor benefit. Mrs. Raines refused to sign such form, with the result that Mr. King arranged for this application to bebrought. [9] In support of his position, Mr. King filed material indicating that he had never named Mrs. Raines as the beneficiary of any of hisOMERS benefits at any point in time.

The Law [10] The statutory framework for the issue raised in this application is contained in the Pension Benefits Act, R.S.O. 1990, c. P.8 (the"Act"): 1(1) In this Act, . . .

"joint and survivor pension" means a pension payable during the joint lives of the person entitled to the pension andhis or her spouse and thereafter during the life of the survivor of them; . . . . . 44(1) Every pension paid under a pension plan to a former member who has a spouse on the date that the payment of the first instalmentof the pension is due shall be a joint and survivor pension. . . . . . 46(1) The persons entitled to a joint and survivor pension benefit may waive the entitlement to receive payment of pension benefits in theform of a joint and survivor pension by delivering to the administrator of the [page159] pension plan . . . a written waiver in the formapproved by the Superintendent or a certified copy of a domestic contract, as defined in

Part IV of the Family Law Act, containing thewaiver. [11]

Section 44 of the Act is a mandatory provision which establishes a joint and survivor pension where a former member has a spouseon the date that the payment of the first instalment of the pension is due. The interplay between s. 44 and s. 46 of the Act was consideredby the Divisional Court in Smith v. Casco Inc., 2010 ONSC 2584 , [2010] O.J. No. 2048, 319 D.L.R. (4th) 641 (Div. Ct.)("Smith").

Speaking for the majority, Matlow J. held, at paras. 38-39: However, in spite of this mandatory provision, section 46(1) of the Act creates an exemption to allow persons entitled to a pensionbenefit to waive this mandatory provision by delivering, in the context of this case, "a written waiver in the form approved by theSuperintendent" It reads as follows: The persons entitled to a joint and survivor pension plan may waive the entitlement to receive payment of pension benefits in the form ofa joint and survivor pension by delivering to the administrator of the pension plan or, in the case of a deferred life annuity, to theinsurance company a written waiver in the form approved by the Superintendent or a certified copy of a domestic contract, as defined inPart IV of the Family Law Act, containing the waiver.

There can be little doubt that the Legislature mandated the use of the approved form to ensure that the exception to the normal benefitprescribed by section 44(1) of the Act could be obtained only if the prescribed preconditions were strictly satisfied. [12] The court then went on to compare the language of the FSCO Form 3 and the form used by the defendant. Although the forms werequite similar and covered the same subject matter, the court found that the Casco form was "substantially different" than the formapproved by the superintendent (at para. 44).

This case underscores the need to use the form approved by the superintendent in order totake advantage of the exception created in s. 46 of the Act. [13] Section 44(1) of the Act refers to "payment of the first instalment of the pension". During the course of argument, the question aroseas to whether that phrase referred to the date upon which Mr. King began to receive his pension or whether the phrase referred to thedate when the first payment was made under the survivor's pension. This issue was considered in Smiley v. Ontario (Pension Board), (ON SC), [1994] O.J. No. 1674, 116 D.L.R. (4th) 337 (Gen. Div.).

In that case, Speyer J. stated, at p. 343 D.L.R.: In interpreting s. 44 of the PBA., I make the following two findings: first, the crucial date being spoken of is the date that the pensioner,in this case Mr. Smiley, is entitled to his first instalment of the pension. It is not the date when the spouse's pension would commence.Such latter

interpretation would distort what I believe to be the clear meaning of the section. Secondly, [page160] Mrs. Smiley was thespouse of the pensioner on the date the first instalment of pension was paid to Mr. Smiley. Further support for this

interpretation can befound in Kendall v. Canadian Multi Employer Retirement Fund for the Graphic Arts Media, [2008] O.J. No. 4711, 71 C.C.P.B. 233(S.C.J.). Analysis [14] The "first instalment" within the meaning of s. 44(1) of the Act was due in January of 1992, when Mr. King retired. Mrs. Raineswas his spouse at that time. That being so, Mr.

King's pension became a "joint and survivor pension" within the meaning of s. 44 of theAct. [15] The question then arises as to whether the release contained in para. 14 of the Separation Agreement, coupled with the requirementin para. 24 of the Separation Agreement that each party would execute any documents required to give effect to the terms of suchagreement, is sufficient to satisfy the exemption requirements created by s. 46(1) of the Act.

In 1992, when the Separation Agreementwas signed, the "prescribed form" referred to in s. 46(1) of the Act was designated as Form 3, R.R.O. 1990, Reg. 909. [16] Paragraph 14 of the Separation Agreement does not mirror Form 3 in any respect. In view of the failure to comply strictly with thestatute, Mr. King is unable to make use of the exception created by s. 46(1) of the Act: see Smith, supra.

[ 17 ] Given the language of para. 14 of the Separation Agreement and the specific reference to the "husband's OMERS Pension Plan", it is understandable that Mr. King would well believe that his former spouse had given up any interest that she might have had in his survivor's pension. However, given the mandatory requirement that in order for the waiver to be valid, the prescribed form must be used, Mr. King has found himself in the unfortunate position of being caught in a trap for the unwary. Costs [ 18 ] Costs shall follow the event on a partial indemnity scale.

If the parties are unable to agree on costs, the respondent shall file her submissions within 15 days. The applicant shall have 15 days from such date to file responding material. All submissions shall be less than two pages, exclusive of time records. Application dismissed.