Docket: CACV2269 Patricia Erna Bigstone Appellant - v. -, 2013 SKCA 115

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 115 Date: 2013-10-29 Between: Docket: CACV2269 Patricia Erna Bigstone Appellant - and - Larry Bigstone , as Executor of Orville Bruce Bigstone Respondent Coram: Richards C.J.S., Lane and Caldwell JJ.A. Counsel: Loretta J. Pete Lambert for the appellant Greg D. Fingas for the respondent Appeal: From: 2012 SKQB 184 Heard: October 11, 2013 Disposition: Appeal dismissed Written Reasons: October 29, 2013

By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell Lane JA. [ 1 ] The appellant sought an order declaring her legal beneficiary of the Public Employees Pension Plan and two retirement savings plans of Orville Bigstone, now deceased. The Chambers judge ruled there was a binding agreement made between the appellant and Orville which existed prior to his death. In the agreement she waived her rights to the pension and the retirement plans. She appeals the resulting order.

Before us, the parties advised the Court any issue regarding the retirement plans was moot. [ 2 ] The appellant Patricia and the deceased Orville were married on November 3, 2001 and separated in June of 2008. During the summer of 2010, the parties commenced negotiations with a view to reaching an interspousal agreement and drafts were exchanged by e- mail between the parties’ counsel. Early drafts confirmed the exchange documents were in fact just drafts and were not to be perceived as any offer or counteroffer.

By October 4, 2010 counsel for the appellant by e-mail confirmed he had reviewed the proposed changes and did not have a problem making the changes. He simply suggested a proposal as to which of the parties would pay various costs. On October 5, 2010 the solicitor for Orville forwarded an agreement with revised numbering. There were no conditions in the e-mail. On the same day, counsel for the appellant replied, “Those changes are fine. Please have your client sign the first four copies.

I believe my client will be signing the same in Yorkton, so I will make those arrangements when I receive the copies back from you.” Immediately thereafter he sent a further e-mail saying he was reconsidering the clause dealing with the divorce suggesting the pension rollover provision would have to be done prior to the divorce so it could be done on a tax-free basis. The divorce provision would have to wait until the rollover provision was executed.

Counsel for Orville replied shortly thereafter saying, “The intent won't change, and given that it is simply a procedural matter, I do not foresee any problem with waiting a few days for the divorce to effect the pension rollover.” [ 3 ] Orville executed the Interspousal Agreement on October 9 with one minor change changing the date of the agreed-upon equalization payment from October 8 to October 15, 2010 because it was simply impossible to have the payment made on October 8. [ 4 ] Counsel for Orville hand-delivered the four copies of the agreement “you and I have drafted” executed by Orville to the solicitor for the appellant on October 12.

The agreement was received at approximately 10:30 a.m. [ 5 ] The appellant executed the agreement on October 13 and her counsel returned two fully executed copies of the agreement to Orville’s counsel. [ 6 ] Unfortunately, between the receipt of the agreement by the appellant’s counsel on October 12 and her signing of the agreement, Orville died unexpectedly at approximately 8:30 a.m. on October 12.

Orville’s counsel did not learn of his death until October 13 and immediately notified the appellant’s counsel who had already returned, as aforementioned, two fully executed copies of the agreement, however, he withheld the signed pension and RRSP transfers. The appellant then claimed not to be bound by the Interspousal Agreement. [ 7 ] She claimed to exercise her rights to the Public Employees Pension Plan as Orville’s spouse but was denied benefits. She then applied to have the Court nullify the Interspousal Agreement. Orville’s executor opposed the application.

The Chambers judge found the agreement to be binding and enforceable pursuant to s. 40 of The Family Property Act , S . S. 1997, c. F-6.3 (the “ Act ”) which finding and resulting order grounds the appeal. [ 8 ] The appellant takes the position she is the legal beneficiary of the pension and the funds because at the moment of Orville’s death she was the legal beneficiary as his spouse. DECISION [ 9 ] It is clear the parties were of one mind and there were no essential elements in dispute. The agreement executed by Orville was forwarded and returned executed by the appellant without any conditions.

As stated, the Chambers judge relied on s. 40 of the Act which reads as follows: 40 The court may, in any proceeding pursuant to this Act , take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. [ 10 ] He then referred to the decision in Iverson v. Iverson , 2009 SKQB 246 , [2010] 3 W.W.R. 511 at para. 31 wherein the decision from this Court in Tether v. Tether, 2008 SKCA 126 , [2009] 4 W.W.R. 274 at para. 62 was referenced. The paragraph reads: 62 In

summary, there can be three distinct lines of inquiry. Firstly, was there a "meeting of the minds", or consensus ad idem , that was manifest to the reasonable observer. Secondly, was there consensus on all the essential terms of the agreement, for if a material term is not resolved, and is left vague and imprecise, without the tools to refine it, the agreement is illusory and the parties are simply asking the court to make an agreement for them. Thirdly, did the parties make their agreement conditional upon, and subject to, execution of a formal document. [ 11 ] The appellant claims she signed the agreement under the mistaken belief Orville was still alive and had she had known he had died

she would not have signed the agreement. All elements and essential terms had to have been mutually agreed upon before Orville executed the agreement because she executed and signed the very agreement without amendment. The Chambers judge was correct to find an agreement and the appellant is bound by its terms. The appellant has demonstrated no palpable or overriding error or any error of principle. [ 12 ] The appellant signed the pension transfer documentation when she executed the agreement which transfer documentation was withheld by her counsel.

In light of our ruling, she is ordered to provide Orville’s estate with the documentation necessary to ensure the pension funds will be transferred to the estate. [ 13 ] The appeal is dismissed with costs in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 29th day of October, A.D. 2013. “Lane J.A.” Lane J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Caldwell J.A.” Caldwell J.A.