Stewart v Stewart, 2023 SKCA 59

Court of Appeal for Saskatchewan Docket: CACV4162 Citation: Stewart v Stewart , 2023 SKCA 59 Date: 2023-05-17 Between: Linda Louise Stewart Appellant (Respondent) And Lyle Eldon Stewart Respondent (Petitioner) Before: Richards C.J.S., Jackson and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Drennan On appeal from: 2023 SKKB 46 , Regina Appeal heard: May 4, 2023 Counsel: James Vogel, K.C., and Joanne Moser, K.C., for the Appellant Peggy Benko for the Respondent Richards C.J.S.

I. INTRODUCTION [ 1 ] Linda Stewart and Lyle Stewart have been husband and wife for almost 50 years. Ms. Stewart appeals from a King’s Bench Chambers decision that granted Mr. Stewart a divorce and provided that 50% of his pension assets be retained by the pension administrators until further order of the Court. The effect of this order, it appears, is to allow Mr. Stewart to deal with up to 50% of his pension assets in advance of the final resolution of spousal support and family property issues. [ 2 ] Ms.

Stewart argues that the Chambers judge erred by severing the divorce judgment from the questions of spousal support and property division. She also submits that the Chambers judge’s decision should be overturned because it amounts to an improper interim division of family property. Finally, Ms. Stewart submits that the Chambers judge mishandled an issue relating to Mr. Stewart’s mental capacity. [ 3 ] As explained below, I would dismiss Ms. Stewart’s appeal. II. BACKGROUND [ 4 ] The Stewarts were married in 1971. Their three adult children are independent of them. [ 5 ] Mr.

Stewart was a farmer and a member of the Legislative Assembly. He fell ill with cancer in 2014 and has battled various forms of that disease ever since. He is now terminally ill. [ 6 ] Ms. Stewart worked as a nurse throughout the course of the marriage. She has been retired since 2014. [ 7 ] Mr. Stewart avers that he and Ms. Stewart separated in July of 2020. He currently has a new partner. Mr. Stewart indicates that “I seek to get on with my life for whatever time I have left”. [ 8 ] Mr.

Stewart petitioned for divorce in February of 2022, asking for an equal division of the family home and an unequal division of family property. [ 9 ] Ms. Stewart filed an answer and counter-petition in April of 2022. She did not oppose the divorce. She sought support and an equal division of the family home and family property. [ 10 ] In August of 2022, Mr. Stewart requested Ms. Stewart’s attendance at Family Dispute Resolution. He received no response. [ 11 ] On November 7, 2022, the Stewarts signed what was styled as an interim separation agreement and interspousal contract [Agreement].

Its main features were that: (

a) Mr. Stewart transferred his interest in significant holdings of farmland and in a farming corporation to the Stewarts’ children; (

b) Ms. Stewart retained the farmlands to which she had title, the family cottage and her shares in the farming corporation; and (

c) Mr. Stewart transferred to Ms. Stewart his interest in a home that they jointly owned in Regina. The Agreement did not purport to deal with other family property such as pensions and investments. Ms. Stewart has a pension that is in-pay that provides her with $70,000 per year. According to her property statement, she also has $243,000 in her bank accounts and roughly $400,000 total in an RSP, a TFSA and a margin account. Mr. Stewart, as explained below, has three pensions and some financial assets of an undisclosed value. [ 12 ] On December 16, 2022, Mr. Stewart served a request for a judicial case conference. In it, he advised of his intention to apply for: (

a) an exemption from the requirement to attend Family Dispute Resolution; and (

b) severance of the divorce application from the

other issues outstanding between him and Ms. Stewart. [ 13 ] Ms. Stewart filed her judicial case conference appearance memorandum on December 29, 2022. She opposed the idea of Mr. Stewart’s application proceeding on the basis that she and Mr. Stewart had not attempted mediation and because Mr. Stewart had not provided disclosure about his pension, something Ms. Stewart described as being “one of the most significant assets of the marriage”. [ 14 ] On January 6, 2023, a judicial case conference was conducted. Justice Bergbusch directed that Mr. Stewart’s application exempting him and Ms.

Stewart from Family Dispute Resolution and severing the divorce application from the other outstanding issues be set for Chambers. [ 15 ] On January 10, 2023, Mr. Stewart filed a notice to disclose, seeking recent chequing, bank account, investment, pension plan and credit card information from Ms. Stewart. [ 16 ] Mr. Stewart filed his notice of application on January 17, 2023. In addition to asking for a judgment granting a divorce, he sought relief described as follows: 1. Pursuant to

Section 44.01(6)(

d) and (

e) of the King’s Bench Act for an Order exempting the Petitioner from the requirement to attend Family Dispute Resolution. 2. Pursuant to Rule 15-102(2) of the King’s Bench Rules of Court for an Order severing the relief claimed in Paragraph 1(

a) of the Petitioner, Lyle Eldon Stewart’s Petition and for an Order allowing the Petitioner’s claim for divorce to proceed severed from the corollary relief under the Family Property Act , as this court deems just. 3. For an Order that the Respondent, Linda Louise Stewart, comply with our Notice to Disclose served upon her on January 10, 2023 by a specified date set by the Court in the event she has not done so by the Chambers date. 4. Any further or other relief as counsel may advise or this Honorable Court may allow. 5.

For an Order for costs in the amount this Honorable Court deems just pursuant to rule 15-96 of the King’s Bench Rules of Court . [ 17 ] Mr. Stewart filed an affidavit, sworn on January 17, 2023, in support of his application. He explained that the bulk of the family property had already been dealt with by way of the Agreement. He also indicated that he had a “pension with PEPP, a Supplementary Retirement Plan for the Legislative Assembly with PEBA and a nominal pension with the Saskatchewan Pension Plan”. He provided the following additional information about the pensions: 21.

I am advised · by solicitor, and verily believe the same to be true, that she contacted the PEPP office on January 5, 2023, after we received Linda’s Judicial Case Conference Appearance Memo dated December 29, 2022. I am advised she spoke with Mr. Sachin of the PEPP office and he advised her that: A. My PEPP pension and PEBA pension is administered by the same office. B. If the Divorce is granted/severed it will not affect her benefits that Linda is entitled to from our relationship. C. The pension monies will be divided as per an Interspousal Contract or Court Order.

The only stipulation is that a maximum of 50% of the pensions can be transferred to Linda. D. That as Linda is a beneficiary, I cannot remove her or change her as my beneficiary until the Divorce Certificate is received. [ 18 ] Mr. Stewart also underlined that he is in a committed relationship with another woman and that, unless he can provide the pension authorities with a certificate of divorce, he is unable to remove Ms. Stewart as the designated beneficiary of his pensions. [ 19 ] Ms. Stewart filed her own request for a judicial case conference on January 27, 2023.

In the request, she advised of her intention to seek an order that Mr. Stewart “submit to medical examination and/or produce medical evidence from his treating physicians and medical specialists that he is mentally competent to instruct his solicitor and understand the nature of the within action, failing which a litigation guardian be appointed for him in this action, and that these proceedings be stayed pending that determination”. Ms. Stewart also filed an affidavit in which she recounted various incidents that were said to reveal a decline in Mr. Stewart’s cognitive abilities. [ 20 ] Mr.

Stewart, in turn, filed an affidavit sworn on February 4, 2023, wherein he took issue with Ms. Stewart’s assertion that he did not have the capacity to instruct his solicitor. He exhibited a letter from a physician who had acted as his oncologist for a number of years. The oncologist averred that he had seen no decline in Mr. Stewart’s mental capacity and that, in his opinion, Mr. Stewart was competent to make medical decisions and, by the same token, capable of instructing legal counsel. [ 21 ] On February 8, 2023, Ms. Stewart filed a reply to notice to disclose in response to Mr.

Stewart’s January 10, 2023, notice to disclose. [ 22 ] Ms. Stewart’s request for a judicial case conference came before Baldwin J. on February 9, 2023, the day before the Chambers date scheduled for the hearing for Mr. Stewart’s January 17, 2023 notice of application. Justice Baldwin denied the request for a judicial case conference and said the parties should be prepared to “discuss the issues” with the Chambers judge the next day. III. THE CHAMBERS DECISION [ 23 ] The Chambers judge dealt with, and decided, both the question of whether Mr.

Stewart should be granted a divorce separate from the resolution of the other issues outstanding between him and Ms. Stewart, and the question of whether Mr. Stewart had the mental capacity to instruct counsel with respect to the application for divorce.

[ 24 ] As for Mr. Stewart’s mental capacity, the Chambers judge began by quoting case authority to the effect that capacity is a function of the nature of the decision-making in issue. In his view, seeking a divorce is not at either the high or the low end of the complexity spectrum. He noted the examples of unusual behaviour that Ms. Stewart says indicate a lack of capacity on the part of Mr. Stewart but, on the other side of the equation, he also referenced the letter from Mr. Stewart’s oncologist attesting to Mr.

Stewart’s mental capacity and the fact that, although the Agreement was signed on November 7, 2022, Ms. Stewart did not question Mr. Stewart’s capacity to enter into it. In the end, the Chambers judge found there was insufficient evidence that Mr. Stewart is incompetent to hold up the divorce and order a full medical examination on the issue. He wrapped up on this point by saying “I conclude [Mr. Stewart] has not been shown to lack the requisite capacity or to require further testing” (at para 29). [ 25 ] The Chambers judge also addressed the possibility of a reconciliation. He did this because Ms.

Stewart took the position that he should dismiss Mr. Stewart’s application for divorce because she still wished to get back together with Mr. Stewart. The Chambers judge had little difficulty concluding that Mr. Stewart has no intention to reconcile and, therefore, that reconciliation was not a realistic possibility. [ 26 ] Mr. Stewart’s pensions were the Chambers judge’s biggest preoccupation in his consideration of whether it would be appropriate to sever the divorce from the balance of the proceedings.

That was so because, by virtue of s. 21(4) of The Public Employees Pension Plan Act , SS 1996, c P-36.2 , a pension plan member’s spouse is deemed to be the member’s beneficiary and, pursuant to s. 21(7) , when a member dies, the spouse can elect to receive either payment of the amount standing to the credit of the member or a prescribed pension benefit. Ms. Stewart was concerned that, if the divorce was granted, Mr.

Stewart would be able to designate a new beneficiary and she would lose the ability to share in his pensions under any future decision with respect to the division of the family property not covered by the Agreement, and that the pensions would be gone for the purposes of spousal support. For his part, Mr. Stewart apparently offered the view that, regardless of the divorce, he could dispose of no more than 50% of his pension assets. [ 27 ] The Chambers judge questioned Mr. Stewart’s

interpretation of the governing legislation and, making his own assessment of the situation, he indicated that, to ensure one-half of Mr. Stewart’s pension assets could be available to Ms. Stewart, it was important that he make an order concerning those assets. This led him to order that the divorce be granted but that 50% of Mr. Stewart’s pension assets be held back by the pension administrators pending further order of the Court.

He said this: [61] Pursuant to s. 21 and s. 29 of The Family Property Act and The Public Employees Pension Plan Act , the inherent authority of the court, and in consideration of the authorities set out herein, I order that the judgment of divorce shall issue, that the family property issues are severed from the divorce on condition that 50% of all of [Mr. Stewart’s] pension assets be retained by the agency and/or administrator holding them presently. The 50% held back by the administrators shall not be distributed to anyone, nor any beneficiary designated other than [Ms.

Stewart], notwithstanding any direction, request, notice of change of beneficiary or demand, whether contractual, inter vivos or testamentary, that [Mr. Stewart] may make, until further order of the court. IV. ANALYSIS [ 28 ] Ms. Stewart challenges the decision of the Chambers judge from a number of angles. Her principal submissions are that: (

a) the divorce should not have been severed from spousal support and family property issues because doing so prejudiced her in relation to those matters; (

b) the Chambers judge erred in purporting to bind non-party pension administrators in his decision; (

c) the Chambers judge had improperly ordered a form of interim distribution of family property; and (

d) the Chambers judge erred by making a ruling on Mr. Stewart’s mental capacity. In my view, these various arguments do not stand as independently from each other as Ms. Stewart suggests. The points she raises are best considered by addressing the following questions: (

a) Did the Chambers judge err in his ruling with respect to Mr. Stewart’s mental capacity? (

b) Did the Chambers judge err in severing the divorce from the other issues in the proceedings? A. Mr. Stewart’s mental capacity [ 29 ] It is clear that the matter of Mr. Stewart’s capacity to instruct counsel was the first issue that had to be addressed by the Chambers judge. In other words, if Mr. Stewart is not capable of instructing his counsel about the divorce proceedings, questions such as whether the divorce should have been severed from the balance of the proceedings simply fall to the wayside.

In that circumstance, his application for a divorce would have to be denied or, at least, denied pending the appointment of a guardian. The Chambers judge appears to have recognized this reality. Presumably because of it, he dealt with that issue at the outset of his decision. [ 30 ] There can be no doubt that there were procedural irregularities with respect to how the question of Mr. Stewart’s mental capacity came before the Chambers judge and was handled by him. As will be recalled, Ms. Stewart filed a request for a judicial case conference on January 27, 2023.

In it, and as noted above, she gave notice of her intention to seek an order requiring Mr. Stewart to “submit to medical examination and/or produce medical evidence from his treating physicians and medical specialists that he is mentally competent to instruct his solicitor and understand the nature of the within action, failing which a litigation guardian be appointed for him in this action, and that these proceedings be stayed pending that determination”. [ 31 ] Contrary to Family Practice Directive #7, Ms. Stewart filed an affidavit with her request for a judicial case conference.

In that affidavit, she recounted various incidents and developments that she held out as evidencing a decline in Mr. Stewart’s mental capacity to the point where there was, in her view, a question about whether he was able to instruct his counsel in relation to the divorce proceedings. The matters that she raised included: (

a) a test in 2020 that showed mild cognitive decline; (

b) difficulties in December of 2022 in figuring out home maintenance and repair issues that had previously not been a problem for him; (

c) an error of judgment with respect to the designation of a possible recipient of a Queen’s Platinum Jubilee Medal; and (

d) unusual difficulties in managing his healthcare plan and in booking medical appointments. [ 32 ] In response, and also contrary to Family Practice Directive #7, Mr. Stewart filed an affidavit rejecting the idea that he did not

have the mental capacity to instruct counsel about the divorce and exhibiting a letter from his oncologist offering the opinion that he, Mr. Stewart, was capable of instructing his medical care providers and his lawyers. [ 33 ] As explained above, Ms. Stewart’s request for a judicial case conference came before Baldwin J. on February 9, 2023. She denied the request and provided as follows: 1. The Respondent’s Request for a JCC filed on February 1, 2023 is denied for the following reason: (

a) Chambers is scheduled for Friday February 10, 2023 at 10:00 a.m. … 3. The JCC Request and draft order filed by the Respondent will be provided to the Chambers Judge and the parties should be prepared to discuss the issues therein with the Chambers Judge tomorrow. 4. The Petitioner has attempted to file an Application for Procedural Matters but has not included a Certificate of Compliance with FAM-PD # 7 . The Application is with respect to objecting to portions of the Respondent’s affidavit sworn on January 27, 2023.

Any objection to affidavit evidence should be brought in the proper form of a Notice of Objection to Affidavit Evidence, which does not require a Certificate of Compliance to be filed . The Application for Procedural Matters and accompanying affidavit filed by the Petitioner has not been filed by the Court but has been provided to the Chambers Judge. This issue shall be discussed in Chambers tomorrow. [ 34 ] The question of Mr. Stewart’s mental capacity was thus on the table before the Chambers judge. However, Ms. Stewart had not filed a notice of application.

Nor, as she points out, did she have an opportunity to file a brief of law or additional affidavits in support of her position. It is difficult at this stage to understand exactly what transpired in the Chambers hearing but, however matters played out, the Chambers judge ended up addressing the substance of what Ms. Stewart had raised about Mr.

Stewart’s capacity and resolving that issue against her. [ 35 ] On the face of things, therefore, I have serious concerns about the procedural side of how the mental competency issue was dealt with before and by the Chambers judge, particularly with regard to how the denial of the request for a judicial case conference ended up pushing Ms. Stewart off of the regular path for bringing an issue of this sort before a judge. Nonetheless, I am not persuaded that those concerns should operate as a basis for overturning the Chambers judge’s decision. That is so for four reasons: (

a) the Chambers judge had before him a detailed affidavit from Ms. Stewart and an affidavit from Mr. Stewart both addressing the mental competency issue. Although Ms. Stewart’s counsel refers obliquely to other affidavit material that could or would have been put before a Chambers judge on this point, he provides no particulars in that regard. No application to adduce fresh evidence was filed with the Court. (

b) Ms. Stewart’s request for a judicial case conference in relation to the competency issue was filed late in the game, some four weeks after her December 29, 2022, judicial case conference appearance memorandum. In that memorandum, she opposed Mr. Stewart’s desire to sever the divorce proceedings but said nothing about his competency as being a reason for taking that position. This tends to suggest that the mental competency issue was something placed in the mix at the last moment in an attempt to derail Mr. Stewart’s application. (

c) Ms. Stewart takes no issue with Mr. Stewart’s capacity to have signed the Agreement on November 7, 2022. This is very difficult to reconcile with the suggestion that, in effectively the same timeframe, Mr. Stewart lacked the capacity to instruct his counsel about the divorce. (

d) Most significantly, and as noted above, Ms. Stewart’s January 27, 2023, request for a judicial case conference gave notice of her intention to seek an order that Mr. Stewart “submit to medical examination and/or produce medical evidence from his treating physicians and medical specialists” as to his mental competency and to hold the divorce proceedings in abeyance until that was done. In point of fact, Mr. Stewart provided the requested medical evidence by way of his February 4, 2023, affidavit exhibiting a letter from his oncologist of many years. The letter attested to his competency.

In other words, given how Ms. Stewart framed the relief that she was seeking, it is entirely unclear how, even if there had been no procedural irregularities, the Chambers judge could have found in her favour. She had already obtained the opinion that she was seeking and thus her application to require the production of such an opinion had, in effect, become moot. [ 36 ] I conclude the Chambers judge made no error in dealing with the issue of Mr. Stewart’s mental capacity that would warrant setting aside the order under appeal. B. Severing the divorce [ 37 ] Ms.

Stewart submits that the Chambers judge erred in severing the divorce decision from the outstanding family property and spousal support issues. She bases that argument on the proposition that the divorce will prejudice her claims in relation to those matters. [ 38 ] Before the Chambers judge, Ms. Stewart argued that the divorce issue should not be severed because granting Mr. Stewart a divorce would mean that she would no longer be the beneficiary under his pension plans and that Mr. Stewart would therefore be able to move the relevant pension assets in other directions.

This prospect was said to be prejudicial to her in respect of her ability to secure appropriate relief on the family property and spousal support sides of this file. Her underlying concern in this regard appears to be that Mr.

Stewart’s pension assets will find their way into the hands of his new partner, who he apparently intends to marry when the divorce becomes final. [ 39 ] In turning to this issue, the Chambers judge reproduced extracts from several cases that had considered or spoken to the factors to be taken into account when deciding whether to sever the issue of divorce from related family law proceedings. These cases were: Brousseau v Brousseau , 2017 ABCA 75 ; Behnami v Mirakhori , 2013 SKQB 177 , 420 Sask R 197; Burgsteden v Jewitt , 2020 SKQB 284 ;

Al-Saati v Fahmi, 2015 ONSC 1114, 59 RFL (7th) 219; Colletta v Colletta (1992), (ON CA), 42 RFL (3d) 227 (OntCA). In the end, the Chambers judge concluded that his task was to weigh the potential prejudice to Ms. Stewart flowing from the grant ofa divorce against Mr. Stewart’s reasons for wanting a divorce with a view to effecting “a fair and appropriate outcome” (at para 46). [40] I note here that neither Mr. Stewart nor Ms. Stewart take issue with the general approach used by the Chambers judge indeciding whether to sever the divorce and that neither made submissions on this issue.

As a result, and in light of the need to turn thisdecision around quickly because of Mr. Stewart’s health situation, I will make no comment about this point other than to observe thatthere is some variation across the country in terms of how the question of severance is approached and that, in an appropriate future case,this Court may want to take a considered view of the issue.

See, for example: M.C. v R.P., 2009 PECA 15 at para 19, 890 APR 293; Milesv Miles, 2004 ABCA 361 at para 4; and Gill v Benipal, 2022 BCCA 49 at para 15, 67 RFL (8th) 253. [41] The Chambers judge appears to have had a concern that granting the divorce might prejudice Ms. Stewart, at least in relation toher family property claim, by putting Mr. Stewart in a position to remove her as the beneficiary of his pensions. To guard against oreliminate that risk of prejudice, the Chambers judge decided to make an order that, in essence, required the relevant pension administratorsto retain 50% of Mr.

Stewart’s pension assets pending further court order. The Chambers judge reasoned as follows: [59] I conclude that with an order that holds back 50% of the pensions by the administrators thereof in the event of a possible familyproperty division which sees some of those assets going to [Ms. Stewart], there is no prejudice either regarding that claim. I find thespousal support claim is unlikely but even so, there are sufficient assets remaining for the possibility on that front.

I am confident that theentirety of the family assets as a whole, the land, family home and corporation, were more than sufficient to deal with all such claims. Thevoluntary disposal of most of those assets by [Ms. Stewart]. cannot become the compelling reason to restrain [Mr. Stewart] in disposing ofa smaller portion of his half of certain assets. The family home went to [Ms. Stewart] as well, something that ought not be overlooked. Shehas a substantial pension and is already receiving $70,000 annually from it. [60] The interests of justice indicate that [Mr.

Stewart] ought to be provided the divorce he seeks even if that means he disposes of hishalf of his pensions to someone other than [Ms. Stewart]. Retaining half of them in the hands of the administrators will ensure[Ms. Stewart’s] claims are not prejudiced. [42] Ms. Stewart takes issue with the pension aspect of this order for two main reasons. To begin, she says that the kind of ordermade with respect to Mr. Stewart’s pension assets was not requested in his notice of application or otherwise.

She describes the notion of“dividing” the pension assets as being something that was raised by the Chambers judge on his own motion during the course of thehearing. For his part, Mr. Stewart acknowledges that the pension idea was something introduced into the conversation by the Chambersjudge. However, he sees no difficulty with what the Chambers judge did because, on his counsel’s account of what happened inChambers, the issue was thoroughly addressed and both parties had ample opportunity to make submissions in relation to it. Ms.

Stewart’scounsel takes no exception to this characterization of what happened in Chambers. [43] I am not inclined to overturn the Chambers judge’s decision on the basis of how it came to be made. Mr. Stewart may not haveformally asked for this particular piece of relief but the status of his pensions was nonetheless very much in issue on the face of thematerials filed with the Chambers judge. His supporting affidavit spoke very directly about the terms on which he could deal with hispensions and about his desire to change beneficiaries. For her part, Ms.

Stewart opposed the severance of the divorce, at least in significantpart, because of pension-related concerns. Given that it appears the possibility of an order of the sort made by the Chambers judge waswell-canvassed in the Chambers hearing by the parties and that Ms. Stewart does not suggest that she was in any way prejudiced by theway things unfolded, I am not persuaded that the Chambers judge’s order should be overturned because the pension-related aspect of itwas not part of the relief formally requested by Mr. Stewart in his notice of application. [44] I turn, therefore, to Ms.

Stewart’s argument that the Chambers judge’s order amounts to an interim distribution of familyproperty that puts pension assets beyond her reach and, therefore, does not adequately protect her from prejudice in respect of her familyproperty claim. The result, she says, is that the divorce petition should not have been severed and that the divorce should not have beengranted. [45] In my view, Ms. Stewart’s arguments on this front would have merit if the Chambers judge had indeed effected an interimdistribution of family property by way of his order.

That is because there were significant gaps in the evidence as to the nature and extentof such property. The King’s Bench file contained no information as to the value of Mr. Stewart’s pension assets and, while Mr. Stewart’sproperty statement indicates that he has a chequing account, a TFSA and mutual funds, the column where the amount of each of theseitems is supposed to be listed says nothing more than “TBD”, which I understand to mean “to be determined”. It therefore is unclear howan interim distribution could have been made against that sort of evidentiary landscape.

It would not have been possible for the Chambersjudge to have known if such a distribution would ultimately be consistent with whatever final order might be made. As a result, it couldhave worked to the prejudice of Ms. Stewart. [46] However, I do not understand the Chambers judge to have made an interim distribution with respect to Mr. Stewart’s pensionassets. Rather, the Chambers judge did no more than take a step that would allow Mr. Stewart, in ways permitted by the various pensionplans, to deal with up to 50% of his pension assets. Thus, on the basis of the situation as it appears to be understood, Mr.

Stewart coulddesignate his new partner – or anyone else for that matter – as the beneficiary of up to a 50% interest in his pensions. But, this would notseem to be any different in principle than Mr. Stewart naming his new partner – or someone else – as the beneficiary under his will withrespect to his bank accounts or mutual funds. In other words, the fact that Mr. Stewart is able to deal with such property by way of abequest or otherwise does not take it out of the family property basket or somehow exempt it from division as family property.

As a result,I am unable to see the Chambers judge’s order as prejudicing Ms. Stewart’s family property claim in the way that she suggests. [47] What then of the impact of the Chambers judge’s order on Ms. Stewart’s claim for spousal support? The argument here, as Iunderstand it, is that the order will somehow affect Mr. Stewart’s ability to make such payments should they be determined to be owing.Again, in my view, this concern reflects a misunderstanding of what the Chambers judge did. He did not say that 50% of Mr.

Stewart’spension assets, or the payment stream that they might generate, are somehow off the table for the purpose of determining, or paying,whatever support obligation, if any, Mr. Stewart might have. Any concern about prejudice on this front is also tempered, as the Chambersjudge noted, by the perhaps unlikely chances of Ms. Stewart being successful with respect to her support claim given the facts that she

worked as a nurse throughout the marriage, has a $70,000 per year pension that is in-pay, has clear title to a home and a cottage, has income of some sort from the four quarters of farmland that she owns in her own name and the three quarters that she now owns jointly with her son and, as well, presumably derives additional investment income from the considerable financial assets listed in her property statement. [ 48 ] I note, finally, that Ms. Stewart also questions the Chambers judge’s order because it purports to bind pension administrators who were not parties to Mr. Stewart’s application.

Notably, this is not a concern raised by the administrators themselves. I do not see this as a ground for upsetting the order. If there are technical difficulties with respect to putting it into operation, these are matters that can be brought back to the Chambers judge to be clarified. [ 49 ] In the end, therefore, I am not persuaded that Ms. Stewart has made out a basis for overturning the decision of the Chambers judge. She takes no exception to the idea that he was required to weigh the possible prejudice against her that might arise from severing the divorce against Mr.

Stewart’s reasons for wanting a divorce and to do so with a view to effecting a fair and appropriate outcome. She has shown no reviewable error in the Chambers judge’s effort to do just that. V. CONCLUSION [ 50 ] I conclude that Ms. Stewart’s appeal must be dismissed. Mr. Stewart is entitled to costs in the usual way with respect to this appeal. There will be no costs awarded in relation to the stay application brought by Ms. Stewart and decided on March 22, 2023. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A. I concur. “Drennan J.A.” Drennan J.A.