Greenwood v Greenwood, 2023 SKCA 87

Court of Appeal for Saskatchewan Docket: CACV3853 Citation: Greenwood v Greenwood, 2023 SKCA 87Date: 2023-08-10 Between:Doris GreenwoodAppellant (Applicant)AndStanley Owen Greenwood (Deceased) Respondent (Respondent) And Colette Greenwood Non-party (Proposed third party) Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice KalmakoffIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Barrington-FooteOn appeal from: 2021 SKQB 161, SaskatoonAppeal heard: April 19, 2023Counsel: Deryk Kendall and Taylor Wilcox for the Appellant Ben Rakochy and Lauren Scharfstein for the respondent estate Kalmakoff J.A. I. Introduction [1] This appeal concerns the

interpretation of a court order made in the course of a family law proceeding in 1981. At issue is whatthe order said about whether a survivor benefit under a pension plan formed part of the family property that was subject to division whenthe order was made, even though the survivor benefit did not become payable until many years later. [2] The parties to the original family law proceeding were Doris Greenwood and Stanley Greenwood. They were married for morethan 27 years. Throughout the course of their marriage, Stanley paid into an employer-run pension plan. [3] In 1981, Doris and Stanley divorced.

As part of the proceedings, in the context of dealing with the division of property, a judgeof what was then the Unified Family Court made an order vesting in Doris a 47% interest, as tenant-in-common, in Stanley’s pensionbenefits, whenever received (Greenwood v Greenwood (1981), (SK UFC), 12 Sask R 287 (UFC) [1981 Order]). [4] After his divorce from Doris, Stanley married Colette Greenwood. Five years after marrying Colette, Stanley retired and beganto draw his pension.

Before he retired, Stanley had elected to receive his pension payments in the form of a “Joint and Survivor Pension –55% Survivor Benefits.” He had named Colette as the sole beneficiary of the survivor benefit. [5] By the time Stanley passed away, he and Colette had been married for 37 years. After Stanley’s death, Colette began to receivethe survivor benefit payable under his pension plan. Doris then brought an application for an order requiring Colette to pay her a share ofthe survivor benefit.

Doris took the position that the survivor benefit was part of the pension benefits in which the 1981 Order had grantedher a vested interest. [6] A judge of the Court of Queen’s Bench, sitting in Chambers, dismissed Doris’s application, because she concluded that the1981 Order had not contemplated that a potential future survivor benefit was something that comprised part of the pension benefits thatwere being divided at the time the order was made (Greenwood v Greenwood, 2021 SKQB 161 [Chambers Decision]). [7] Doris now appeals against the Chambers Decision.

She alleges that the Chambers judge failed to properly interpret the 1981Order. [8] For the reasons that follow, I would allow the appeal. II. Background [9] Stanley and Doris were married in 1953. They separated in late 1979 and were divorced in 1981. Throughout their marriage,

Stanley worked for Canadian National Railway [CN] and, by virtue of that employment, earned a federally regulated pension. [10] The main issue of contention in the divorce proceeding between Stanley and Doris was the division of their family property (or,in the parlance of the time, matrimonial property). They went to trial over that issue in February of 1981. [11] On March 19, 1981, Carter J. rendered the decision that contained the 1981 Order. In broad strokes, she determined that all ofthe family property, with the exception of Stanley’s pension benefits, should be equally divided.

As for the pension, she made the followingorder: IT IS HEREBY ORDERED AND ADJUDGED that [Doris] shall have vested in her as Tenant-in-Common, a forty-seven (47%) per centinterest in [Stanley]’s pension benefits with the Canadian National Railways, whenever received, less [Stanley]’s Old Age Pension whichwill be integrated with his CN Pension and less any amounts attributable to contributions made by him since February 5th, 1981. [12] Justice Carter concluded that Stanley’s pension benefits should be divided slightly unequally in his favour, to account for thefact that he had contributed to the pension plan before he and Doris were married, and that he would continue to do so, post-divorce andpre-retirement.

She also recognized the difficulty inherent in placing a present value on benefits whose precise nature and value would notbe fully ascertained until some time in the future. She reconciled those difficulties in the following way: [5] … In view of the contributions made by [Stanley] before the marriage, it would be unfair not to divide [the pension] somewhat infavour of [him].

Counsel considered the question of the pension and said that [Stanley] would be willing to assign benefits to [Doris] in theproportion which I might set, and she would be willing to receive those benefits, rather than order [Stanley] to make a lump sum settlementnow. [6] in Rutherford v Rutherford (1979), (BC SC), 14 RFL (2d) 41, Bouck J., of the British Columbia Supreme Courtsaid at page 58: …pension benefits have become an increasingly significant part of the consideration earned by an employee for his services.

As the date ofvesting and retirement approaches, the value of the pension grows until it often represents the most important family asset. A division offamily assets which awards one spouse the entire value of the asset without any offsetting award to the other spouse, does not represent thatequal division of property contemplated by the Family Relations Act… … [7] Bouck J., also pointed out that in the Rutherford case, the husband, after the divorce, may be contributing to the pensions schemefor 12 years so that the proportion of 50% each upon retirement would not be just.

In the case before me, [Stanley] is now 56 and may thusbe contributing for a further 9 years without the help of [Doris]. This must somehow be taken into account. [8] In Zakreski v Zakreski (UFC 23 of 1978) [(1981), (SK UFC), 10 Sask R 1 (Sask UFC)] in a judgment deliveredJanuary 20, 1981, my Brother Dickson of this court also addressed the problem of a pension fund; he held that a pension fund falls withinthe definition of matrimonial property but can be looked upon as a maintenance asset or a property asset.

In the Zakreski case, he treated itas a maintenance asset, partly because the husband had insufficient assets in Saskatchewan to make a lump sum settlement. No suchdifficulty exists in the case before me. The husband could raise the money to pay his wife were I to put a value upon her share of thepension benefits to come.

But for the reasons mentioned in both Rutherford and Zakreski, putting a value upon the pension is hazardous,and might be unfair to either party, and the parties themselves are willing to deal with it by having it divided between them when thebenefits are paid. [9] Because [Stanley] contributed to his pension for five years before marriage to the total amount of $2,000.00, and because thatamount over the years has added to the value of the pension, I have decided that he should receive 53% of the pension benefits and [Doris]47%. I am prepared to follow Bouck, J., in Rutherford v.

Rutherford (a further order to the one made in the case cited above), (BC SC), [1980] 6 WWR 206, and make an order under s. 26(1)(vii) of the Matrimonial Property Act vesting in [Doris] a 47% interestas tenant-in-common in [Stanley]’s pension benefits whenever received, less of course, his Old Age Pension which will be integrated withhis CN Pension.

In order to compensate [Stanley] for contributions made by him after the date of the trial, [Stanley]’s portion will increaseby 1% and [Doris]’s portion shall decrease by 1% for each year of contributions that [Stanley] may make to the pension fund after February5, 1981 for a maximum of two years. In that event, the final apportionment of [Stanley]’s final pension benefits, when received, would be55% to [Stanley] and 45% to [Doris].

In the event that [Stanley] does not contribute to the pension fund for a period of one year fromFebruary 1, 1981, then [Stanley]’s pension benefits, when received will be 53% and [Doris]’s 47%. … (Emphasis added) [13] In 1982, Stanley married Colette. They remained married until Stanley’s death, on December 12, 2019. [14] Stanley continued to work for CN until he retired, on August 31, 1987, and began to draw his pension. After his divorce fromDoris, but before he retired, Stanley elected to receive a “Joint and Survivor Pension – 55% Survivor Benefits”.

This meant Stanley wouldreceive his pension post-retirement, but only in the amount of 55% of what his full entitlement would have been.

The trade-off for receivinga reduced payment was the survivor benefit, meaning that when Stanley died, the person he had designated as his beneficiary – Colette –would continue to receive the pension payments for the rest of her life. [15] Over the years, the matter came before the courts several more times, as Doris and Stanley had disagreements regarding theprecise value of Doris’s share of the pension, how and when it should be paid to her, and how the tax consequences should be addressed.Of significance to this appeal, in 1990, Doris brought an application seeking an order declaring Stanley in contempt for failing to pay outher monthly share of the pension benefits he was then receiving from CN.

Stanley also sought the Court’s clarification respecting thepercentage of Doris’s interest in the amounts he was receiving, given that he had continued to make contributions to his pension betweenthe time of the breakdown of their marriage and his retirement. The parties resolved these applications by negotiating an agreement whichbecame a consent order (also made by Carter J.) [1990 Order], that recognized the post-separation, but pre-retirement, contributions Stanleyhad made to the plan. The 1990 Order stated, in relevant part:

[1] Further to the Judgment of Madam Justice Carter granted March 19, 1981, [Doris’s] interest in [Stanley’s] pension benefits from the [CN] pursuant to the provisions of The Matrimonial Property Act , shall be fixed at an amount equal to 25.56% of [Stanley’s] pension benefits received by him from [CN], exclusive of old age pension, to reflect contributions made by [Stanley] to the pension plan from March 19, 1981 to August 31, 1987. [2] [Stanley] shall pay to [Doris], forthwith, the sum of $16,287.83 for arrears of pension entitlement, inclusive of interest up to and including April 30, 1990. [3] [Stanley] shall pay to [Doris] an amount equal to 25.56% of the pension he receives each month from [CN] (exclusive of Old Age Pension) … As [Stanley] shall be required to pay income tax to Revenue Canada on his monthly pension as received, he shall be entitled to withhold an amount equal to 25.56% of the pension received by him from [CN] (Exclusive of Old Age Pension) multiplied by a fraction equal to the income tax deducted from the monthly pension payment in each year, divided by the aforesaid monthly pension payment received … [ 16 ] In 2007, Doris applied for, among other relief, an order requiring Stanley to provide a full accounting of monies he had received from his pension plan, and paid to her, since the 1990 Order had been made, an order to pay to her any amounts due and owing, and “An Order providing further directions with respect to the [ 1990 Order ] on an ongoing basis in order to give effect to the intention of the Order that [Doris] receive 25.56% of the after-tax pension benefits as part of the division of matrimonial property”.

This application was heard by Gabrielson J., who made an order that dealt with various tax implications and required Stanley to pay to $10,267.36 to Doris as a lump sum property division [ 2008 Order ]. The 2008 Order also contained a provision that read as follows: [2] For the year 2007 and each year hereafter [Stanley] shall pay to [Doris] 25.56% of the gross pension benefits he receives for his Canadian National Railway Pension. These amounts shall be paid on a monthly basis.

On or before the 5 th of each month he shall pay to [Doris] a sum equal to 25.56% of the gross pension benefits he received that month from the Canadian National Railway Pension. [ 17 ] After Stanley died, Colette began to receive the survivor benefit. In June of 2020, Doris brought an application for an order requiring Colette to pay her a share of it.

Doris took the position that the survivor benefit was a pension benefit to which she, Doris, was entitled, by virtue of the vested tenant-in-common interest granted to her in the 1981 Order . [ 18 ] Doris’s application was heard in the summer of 2020 and, by way of the Chambers Decision , dismissed. The Chambers judge approached the application as being one that asked her to interpret the 1981 Order , pursuant to Rule 10-11(1)(

b) of The Queen’s Bench Rules . In that respect, after citing in detail the approach laid out for such a task in Kidd v Kidd , 2020 SKQB 249 at paras 33–41 , the Chambers judge said: [31] …[H]aving been called upon to interpret a former court order, I must consider the circumstances in which the order was made, including the pleadings, notices of application and affidavit materials that were before the Court at that time. I must also keep in mind that an application to interpret an order does not provide me with permission to substantively vary it or import current legal principles into its meaning.

An order speaks on the date it is pronounced and must be interpreted accordingly. It is with this framework in mind that I must consider the application before me. [ 19 ] In rejecting Doris’s application, the Chambers judge concluded that the 1981 Order did not include the survivor benefit as part of the “pension benefits” that were being divided. On that point, she said: [34] Firstly, the provisions of the 1981 order respecting the division of pension benefits was varied by [the 1990 Order ].

In the [ 1990 Order ], Carter J. specifically fixed and defined Doris’ “interest” in Stan’s pension benefits as follows: Further to the Judgment of Madam Justice Carter granted March 19, 1981, [Doris]’s interest in [Stanley]’s, pension benefits from Canadian National Railway pursuant to the provisions of The Matrimonial Property Act , shall be fixed at an amount equal to 25.56% of [Stanley]’s, pension benefits received by him from the Canadian National Railway, exclusive of old age pension, to reflect contributions made by [Stan] to the pension plan from March 19, 1981 to August 31, 1987, the date on which [Stanley] retired from Canadian National Railway. [35] The language employed in the [ 1990 Order ] is clear and unequivocal – Doris’ interest in Stan’s pension benefits pursuant to the marital property legislation and the 1981 judgment were equal to 25.56% of those pension benefits received by Stan.

Despite that Doris sought additional relief in her motion, including declarations of trust and legal entitlement under the federal legislation, no such relief was granted. [36] The fact that the [ 1990 Order ] became the foundation for Doris’ entitlement (as opposed to the [ 1981 Order ]), is further supported by the application brought by Doris in 2007. At that time, she applied for directions due to problems that had arisen with respect to the tax status of the monthly payments.

In the materials filed by Doris, she regarded the [ 1990 Order ] as the foundation for her pension entitlement – not the 1981 judgment. In her affidavit sworn July 11, 2007 she stated that “the matter came before Madam Justice Carter and an Order was pronounced on September 4, 1990 amending the original Order with respect to the division of the pension”.

She also deposed that “[t]he Order fixed my entitlement to the Respondent’s pension at 25.56% to take into account further contributions to the pension that had been made by the Respondent between the date of the original order and the date of retirement.” (at para 7). [37] The language employed in both the [ 1990 Order ] and the [ 2008 Order ] attach Doris’ proprietary interest to those pension benefits received by Stan.

There is no mention of death benefits or survivor benefits, notwithstanding that the issue had been raised by counsel for Doris in earlier negotiations – a request that was refused by Stan’s counsel. [38] Secondly, Doris grounds her

interpretation of the term “pension benefits” in the [ 1981 Order ] on current legislation and family property principles rather than focusing on what would have been intended by the Court when the original order was made. Doris provides no evidentiary basis to support a finding that her interest in Stan’s “pension benefits” in 1981 would have included some value reflecting a contingent survivor benefit and nothing in the reasons for judgment contemplate this inclusion nor is there anything in the materials to suggest that the issue was put before the Court. [39] As stated, a judgment speaks from the time it is pronounced. Even today, the argument that a pension entitlement includes survivor

benefits for family property distribution purposes, could not be said to be obvious, commonplace or a principle “engrained in family law”:see Randell v Randell, 2012 SKQB 350 at para 33, 403 Sask R 267. … [41] … I cannot accept that the inclusion of survivor benefits in a pension distribution was anticipated in Saskatchewan in 1981 whenthe inclusion of any pension benefits in marital property distribution was a fairly recent advancement in the law: Tataryn vTataryn (1984), (SK CA), 30 Sask R 282 (CA).

In Blackwell v Blackwell (1987), (SK KB), 58 Sask R297 (QB), a case determined by Carter J. several years after the original judgment in this case, she acknowledged the existence of anunresolved legal debate respecting whether a death benefit “is or is not matrimonial property” (at para 21). [42] In other words, even had I found that the [1981 Order] remained the Court’s final word on Doris’ entitlement to Stan’s pensionbenefits, I would not see fit to import the substantive

interpretation that Doris now asks the Court to make – specifically, that the term“pension benefits” in the [1981 Order] intended to include survivor benefits payable to a potential future spouse upon Stan’s death.

Such aninterpretation goes beyond the scope of Rule 10-44. [20] In short, the Chambers judge concluded that the 1981 Order had effectively been varied by the 1990 Order and, based on thelaw as it existed at the time it was made, could not properly be read as having contemplated the inclusion of a future survivor benefit withinthe scope of Stanley’s divisible pension benefits and, accordingly, the survivor benefit was not part of Doris’s vested interest. III. Analysis A. Issues [21] The outcome of this appeal turns on whether the Chambers judge erred in her

interpretation of the 1981 Order.

Doris asserts thatthe Chambers judge made three errors that led her to incorrectly interpret that order. [22] First, Doris says the Chambers judge failed to properly account for the fact that Carter J. had dealt with Stanley’s pension as aproperty asset, rather than as a maintenance asset. [23] Second, she contends the Chambers judge erred by concluding that there was “no evidentiary basis” to support her position thatthe interest she was granted in Stanley’s pension benefits by virtue of the 1981 Order would have included a contingent survivor benefit. [24] Third, Doris argues that the Chambers judge erred by finding that the 1981 Order had been varied or overridden by the 1990Order and the 2008 Order.

B. Standard of review [25] The question of whether a court decision has been properly interpreted is a question of law and, as such, is reviewable forcorrectness (Hertz v Kille, 2023 SKCA 3 at para 15; Onion Lake Cree Nation v Stick, 2020 SKCA 101 at paras 55–61, [2021] 2 WWR614). C.

Interpretation of court orders – the governing principles [26] The

interpretation of a court order is not governed by the subjective views of the parties.

A judge who is interpreting a courtorder must “consider the language of the order in the context of the pleadings, the proceedings in the action that led to the order, thecircumstances surrounding the making of the order, and the reasons given for making the order, if any” (Giesbrecht v Stettner, 2023 SKCA52 at para 6; see also: Pratt v Johnson, (SCC), [1959] SCR 102; Campbell v Campbell, 2016 SKCA 39 at para 15, [2016] 8WWR 631 [Campbell]; Sutherland v Reeves, 2014 BCCA 222 at para 31, 61 BCLR (5th) 308; and Yu v Jordan, 2012 BCCA 367 at para53, 354 DLR (4th) 8). [27] The reasons given by the court that made the order are often of great significance in the interpretive process.

On that point, inCampbell, at paragraph 16, Ottenbreit J.A. cited with approval the decision in Sans Souci Limited v VRL Services Limited, [2012] UKPC 6,where Lord Sumption stated: [13] …[T]he construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what thelanguage of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Courtand patent to the parties.

The reasons for making the order which are given by the Court in its judgment are an overt and authoritativestatement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, theinterpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed toresolve. (Emphasis added) [28] The statutory framework that applies to the decision-making underpinning the order is also a relevant and highly significantcontextual consideration. D.

The principles applied [29] Doris’s first argument is that the Chambers judge erred by failing to properly recognize or account for the significance, in theinterpretive exercise, of the fact that Carter J. had treated Stanley’s pension benefits as a property asset to be divided, rather than as an

income source available for the payment of maintenance. [30] In assessing this argument, it is important to understand that, at the time the 1981 Order was made, federal pension legislationdid not allow for a pension to be split at source by the pension administrator.

While the Pension Benefits Standards Act, 1985, RSC 1985, c32 (2d Supp), and the Pension Benefits Division Act, SC 1992, c 46, would later change that, those statutes were not yet in effect when therelevant events in this case occurred. [31] Also of significance is the fact that CN’s 1959 Pension Plan - the plan under which Stanley’s pension was earned – did not allowfor Stanley to voluntarily assign any portion of his pension benefits to Doris.

In that respect, Rule 19 read: No pension, survivor or other benefit payable under this Pension Plan shall be capable of being assigned or alienated, and they shall notconfer upon any contributor, personal representative, dependent or other person any right or interest therein that is capable of beingassigned or alienated… [32] Perhaps in large measure because pensions could not be divided at source for the sake of equalizing family property, thejurisprudence from that time demonstrates that courts frequently struggled with the question of how pension benefits should be allocated inthe event of marriage breakdown. [33] In some cases, judges treated pensions as a property asset, with a fixed or present value that was subject to division (See, forexample: Lawrence v Lawrence (1981), (NS CA), 25 RFL (2d) 130 (NSCA)).

In other cases, particularly where therewas a lack of evidence upon which to make an accurate assessment of the actual value of the pension fund for the purpose of determiningits proper division, courts treated pensions as streams of income that could be used to provide spousal maintenance. In Zakreski v Zakreski(1981), (SK UFC), 10 Sask R 1, [1981] 3 WWR 33 (SK UFC), Dickson J. explained this dichotomy and the rationalebehind the two approaches, as follows: [16] Devising the proper order to effect equal distribution is a difficult task because of the husband’s pension fund.

He is an employee ofthe Federal Government. Since 1973, he has contributed a percentage of his salary to the mandatory pension fund established underthe Public Service Superannuation Act, RSC 1970, c P-36. He testified he will be entitled to a life-time pension of $6,000.00 to $7,000.00 ayear when he retires at age 65; 8 years from now. [17] I am satisfied that a pension fund falls within the statutory definition of matrimonial property. I agree with Noble, J., who,in Harriman v Harriman (Sask. QB unreported), described a pension fund as a shareable asset acquired by spousal efforts during themarriage.

The benefits represent remuneration from employment which otherwise would have been shared through division of other assetsor during the course of the marriage (see also Rutherford v Rutherford, (1979) (BC SC), 14 RFL (2d) 41, and judgmentaddendum reported (1980), (BC SC), 6 WWR 206). On the other hand, a pension fund under which benefits are not yetpayable can fairly be regarded, not as a property asset, but instead a source of income from which maintenance obligations can be paidwhen employment income ceases.

For several reasons, I intend to regard the husband’s pension as a maintenance asset rather than adivisible property asset. Firstly, there is no evidence before me of actual value of the fund upon which an order for division could be based.Even had such evidence been presented, the Saskatchewan Court of Appeal, in Harriman v Harriman (supra), was not prepared to capitalizethe pension fund and divide it.

However, the court stated that its decision did not mean that pensions and annuities could never beconsidered in the division of property. … [20] Thirdly, unlike other matrimonial assets, a pension fund cannot be sold or transferred to effect equal distribution of matrimonialproperty. [21] My intention to treat the pension fund as a maintenance asset does not entirely solve the problem. If the husband resigns his job ordies before benefits under the pension become payable, he or his estate will become entitled to return of contributions made.

If that eventshould occur, the wife would be deprived of her fair share of a substantial matrimonial asset. The possibility of such an event is acircumstance that satisfies me that it would be unfair and inequitable to make an equal distribution of matrimonial property over which thiscourt has jurisdiction.

Therefore, I intend to make an offsetting award to the wife. [34] It is apparent from the reasons given by Carter J. in making the 1981 Order, and the fact that she granted Doris a 47% vestedinterest as a tenant-in-common in Stanley’s pension benefits, whenever received, that she was treating those benefits as a property asset.This is significant for two reasons, in the circumstances of this case. [35] The first is the conceptual difference between property division and maintenance in the family law context at the time the 1981Order was made.

In broad terms, the law reflected the same fundamental principles then as it does now. The Matrimonial Property Act, SS1979, c M-6.1 [MPA] – which, at the time, was considered to be ground-breaking legislation – had been in effect for less than 15 months. Itprovided that matrimonial property was to be distributed equally between the spouses, subject to the exceptions, exemptions and equitableconsiderations mentioned in the Act. Its division was tied to the value of the asset.

Spousal maintenance, on the other hand, was payablepursuant to the Divorce Act, S.C. 1967-8, c. 24, only if entitlement had been established, and quantum (at least insofar as non-compensatoryspousal maintenance was concerned) was tied to the parties’ means and needs. Moreover, property division was not affected by the death ofone spouse; the estate of a deceased spouse was subject to division just as their property was when they were alive.

The obligation to paymaintenance did not continue after death. [36] The second important aspect of treating Stanley’s pension as property rather than as a source of income, from the standpoint ofthe interpretive exercise, is the fact that Carter J. explicitly stated in her reasons for making the 1981 Order that she was following theapproach taken by Bouck J., in Rutherford v Rutherford (1979), (BC SC), 14 RFL (2d) 41 (BCSC) [Rutherford], and theaddendum to that decision, Rutherford v Rutherford, (BC SC), [1980] 6 WWR 206 [Rutherford Addendum]. [37] Rutherford was a case in which the Court divided a husband’s pension, at the time of marriage breakdown, by granting the wife a50% vested interest as a tenant-in-common in it.

The aspect of Rutherford that is notable for present purposes is that Bouck J. settled on thatapproach to division of the pension because its full value could not be ascertained until the husband either died or retired.

[ 38 ] In Rutherford , Bouck J. observed that determining the value of a pension that had not yet become payable, for the purpose of dividing family property, was particularly difficult because of the need to account for future contingencies, including how the fairness of division may be affected if someone other than the spouse of the pension holder was designated as the beneficiary of a survivor benefit. In that regard, he said: [54] Clearly the pension is a family asset, if not by statute, then by logic under s. 51.

Paraphrasing Tobriner J. of the California Supreme Court when he wrote for a seven-man Court in Brown v Brown (1976), 544 P. 2d 561 at p. 566 , “pension benefits have become an increasingly significant part of the consideration earned by an employee for his services”. As the date of vesting and retirement approaches, the value of the pension right grows until it often represents the most important family asset.

A division of family assets which awards one spouse the entire value of the asset without any offsetting award to the other spouse, does not represent that equal division of property contemplated by the Family Relations Act. [55] It seems apparent the husband intended to deprive the wife of a share in the pension when he nominated his children as beneficiaries under s. 24 of the Public Service Superannuation Act . Such a step was contrary to s. 52(3)(

a) of the Family Relations Act as it was done “for the purpose of defeating a claim to an interest in the (pension)” by the petitioner. When this occurs, the Act empowers the Court to make an order vesting the wife’s half-interest in the pension for her benefit . Counsel for the respondent argued no such order should be made because it is contrary to the scheme of the Public Service Superannuation Act. While this may be so in a technical sense the Family Relations Act is so far-reaching in its scope that an order of this nature can be explored. [56] By the combined effect of s. 2(

c) of the Crown Proceedings Act, 1974 (BC), c. 24 [now the Crown Proceeding Act, RSBC 1979, c. 86], and s. 13 of the

Interpretation Act, 1974 (BC), c. 42 [now RSBC 1979, c. 206], the Crown as administrator or trustee of the pension funds held pursuant to the Public Service Superannuation Act, is bound by the provisions of the Family Relations Act, 1978.

Section 52(1) of the Family Relations Act, reads in part: 52(1) … the Supreme Court may determine any matter respecting the ownership … or division of property … and may make such orders as are necessary, reasonable, or ancillary to give effect to the determination. [57 ] None the less, when orders can be made that do not interfere with the administration of the Public Service Superannuation Act , it is better to resort to these in the first instance.

Requiring the husband to nominate his wife instead of his children as the beneficiary of the pension contribution, does not seem to create any particular difficulty. All it means is that if the husband dies before becoming entitled to receive his pension, one-half of the amount he has paid in becomes the property of his wife. Like the division of the other assets, the date when this sum should be calculated is the date of the dissolution of the marriage . [58] So far as sharing in the monthly pension cheques once they come into the husband’s possession, the answer is not quite so easy.

He may retire at age 55, 60 or 65. He may resign now and receive his pension at age 55 or he may remain in service until age 55 and retire then on pension. Similarly, he has the option to retire at age 60 or 65. From the evidence, it was not entirely clear to me what would happen if he retired at age 57 or 63, for example.

I assume there is a greater pension benefit to him if he elects either age 60 or 65 rather than some age in between. [59] But if he waits until he is 65 on July 9, 1991, the situation of the parties may have changed so dramatically as to make it questionable whether the wife should receive one-half the monthly payments, particularly since they will have been separated at that time for almost 15 years. [60] During the marriage the parties expressed an intention that the husband retire at age 55.

Simply because he obtains a divorce decree at age 53 is insufficient to deprive the wife of any share in the pension once it commences. It is a family asset and ought to be treated as such. As things now stand, I would be inclined to grant the wife a 50% share in the monthly cheque should the husband resign between now and the time he is 55 or should he work until retirement at age 55.

But as each year passes thereafter, the share she might receive may become somewhat smaller because the money taken from his salary towards the pension is not being earned while the two are husband and wife. [61] Consequently, I believe an order should now be made under s. 52 of the Family Relations Act restraining the husband from nominating any other person than the petitioner as a beneficiary of his pension when it starts upon his retirement. The option available to the husband in these circumstances is an election for payment of the pension during the joint lives of the petitioner and the respondent.

If either dies, the survivor will continue to receive whatever benefits are due. … [63] On the occasion of the husband’s retirement and receipt of the pension, both the husband and the wife will have to try and agree to a method of dividing up the monthly pension cheques. If this fails, they will be at liberty to return to this Court where a division of the proceeds can then be made. The wife may get 50% or she may get something less depending upon the circumstances at that time.

It would be better if all these matters could be done now, but there are too many uncertainties ahead for anyone to make an order with confidence that it will be just and equitable when the date the pension payments commence. (Emphasis added) [ 39 ] Ultimately, to account for all of this and to divide the pension benefits fairly, Bouck J. made the following order, which provided that the husband was required to nominate his wife, rather than his children, as the beneficiary of the survivor benefit: JUDGMENT …

(6) The husband’s direction to the Superannuation Commissioner under s. 24 of the Public Service Superannuation Act granting one-half the pension contributions to his children in the event of his death is set aside and the husband is directed to file a new election nominating his wife in place of the children.

(7) The husband is restrained from making any election under the Public Service Superannuation Act in the event of his retirement orresignation, other than a joint benefit nominating himself and the petitioner with the last survivor option. [40] After the decision in Rutherford had been rendered, the parties were unable to settle the formal judgment. This led to a secondhearing before Bouck J., in which the parties sought direction on that point.

The second hearing resulted in the Rutherford Addendum, inwhich Bouck J. provided the following additional clarifying explanation for the order he had initially made in Rutherford: [18] Between now and the time of retirement, changes could be made in the Public Service Superannuation Act eliminating the right toelect a joint interest upon retirement. Other similar kinds of amendments or things could occur which might have the effect of defeating theintention of equal division of the pension if too rigid an order is made at this time.

Consequently, I think it best to make a simpledeclaration that the wife has an undivided one-half interest as a tenant in common in the value of the pension calculated as of 15thNovember 1976. When death or retirement occurs, it will be necessary to ascertain the exact value of that asset and how it should beapportioned. (Emphasis added) [41] As noted above, in making the 1981 Order, Carter J. explicitly stated that she was “prepared to follow Bouck J. in Rutherford”. Iread this statement as an indication that she intended to make the same type of order he had made, and for the same reasons.

In other words,she made an order apportioning Stanley’s pension without deciding what its exact value was until the precise nature of all the benefits itprovided were fully realized. [42] Reading the 1981 Order in that fashion is consistent, in my view, with how the decision in Rutherford was being interpreted bythe Court of Queen’s Bench at the time Carter J. made the order. For example, in Morrell v Morrell (1981), (SK KB), 15Sask R 307 (QB), Dickson J. took the same approach in similar circumstances, explicitly referring to and following Rutherford.

Heexplained his rationale for doing so as follows: [7] When counsel for the wife suggested in his

summary that I should order a percentage of the husband’s pension be paid to the wife, Icommented that the evidence before me established only that the husband has some sort of pension fund. There is no evidence of thecontributions made to the fund during the marriage; no evidence of the present value of the fund; no evidence of the anticipated amount ofbenefits payable upon retirement or death of the husband. The lack of such evidence gave me doubt that I was able to deal with the pensionat all. Further reflection has resolved that doubt.

Out of the scanty evidence, there emerges one fact that cannot be ignored; the pension fundexists. It was created by the infusion of income earned during the marriage. Had that income been deposited in a savings account, therewould be no doubt that the wife is entitled to share it. Why then should that income be treated differently because it was deposited in apension fund rather than a savings account? I see no reason why it should.

Whatever its value, the pension fund, in my opinion, is ashareable matrimonial asset. … … There remains the problem of devising an order to effect an equitable distribution of the fund. [8] Because the present value of the pension fund is unknown, I cannot regard it as a capital asset capable of being divided between theparties at this time. If I’m expected to do so, it is incumbent upon the applicant to adduce evidence of its present value. Alternatively, I maytreat it as a source of income from which maintenance obligations can be paid when employment income ceases.

But in this case, thehusband has no maintenance obligation to the wife. What then, is the proper approach? [9] In my opinion, the proper approach is to regard the husband’s pension fund as a shareable asset of undetermined value that willproduce future benefits that are also undetermined, perhaps not capable of determination at this time. Vesting in the wife now a share of thefuture benefits, whatever they prove to be, appears to be the logical approach.

That approach was taken by Bouck, J., in Rutherford v.Rutherford … … [10] Therefore, there will be a declaration that the wife has an undivided one-half interest as a tenant-in-common in the value of thepension fund calculated as of August 22, 1976, the date cohabitation ceased. A certified copy of this order may be served on the Ministerpursuant to s. 20(2) of the Public Service Superannuation Act, RSC 1970, c P36. When death or retirement occurs, it will be necessary tocalculate the exact value of that part of the fund in which the wife is to share.

If the parties have difficulty doing so, they have leave toapply for further directions. (Emphasis added) [43] In Tataryn v Tataryn (1982), (SK KB), 35 Sask R 206 (QB), Walker J. took a similar approach to dividing apension, stating: [11] What is one-half the pension? One-half the capitalized value actuarially calculated? One-half the contributor’scontribution plus interest? One-half the monthly payments when the pension matures? Something else? It may, in proper circumstances, byany of these. But basically it is simply one-half the pension valued as at the date of application.

This asset cannot be valued with certaintyat the time of application. However, it will be capable of valuation with some certainty once all of the contingencies presently in place havebecome facts which can enter into the calculation. In result, the contingencies presently in place will in the future have become facts and theresults of their operation will have been shared by the parties in equitable and fair fashion. The parties will be subject to the provisions ofthe plan.

During the period between the present and the pension plan maturity, each party will have an “asset”. … [13] I am satisfied that, because of the contingencies operating and the time period between now and the maturity of thepension, I should not divide the application date capitalized value of the pension between the parties. I am satisfied that, because it does notrepresent the true value of the pension; I should not divide the husband’s contributions to the pension to the application date plus interest

between the parties. … Putting a value on the pension at this point might be unfair to either party. I am satisfied that not too rigid an order isrequired at this point and that it is necessary to preserve flexibility to deal with the variety of developments and contingencies involved.

Iam satisfied that it is closest to fairness and equity, in present circumstances, to make an order under s. 26(1)(b)(vii) of the MatrimonialProperty Act that the wife has a present and vested undivided one-half interest as a tenant in common with the husband in the value of thepension calculated as of the date of application, namely, 16th June 1981, to be ultimately ascertained in exact value and apportionedbetween the husband and wife at the maturity of the pension, namely, the death or retirement of the husband, whichever shall first occur, onthe basis, inter alia, of the principle that the pension is matrimonial property to the extent that it flows from the husband’s employmentduring the period from marriage to the application.

The wife will, of course, in present circumstances, receive something less than 50 percent of the pension payments after maturity. The husband will retain his right to decide his date of termination or retirement and the natureof his retirement benefits, within the provisions of the terms of the pension. I am mindful of the desirability of “doing it now”. However, inpresent circumstances, the inconvenience and disadvantage of putting off the day is outweighed by the necessity of fairness to the wife andher husband who is not far short of retirement age.

The wife, or her estate, is to have a vested interest in the husband’s pension at this time. [44] Subsequent to all of these decisions, this Court also recognized that there were two valid approaches to the division of pensions:(

i) division based on immediate valuation, and (ii) deferring of distribution, to account for future contingencies, if that was necessary toachieve justice (see, for example: Grainger v Grainger (1987), (SK CA), 54 Sask R 10 (CA); and Gilmour v Gilmour(1994), (SK CA), 128 Sask R 113 (CA)). [45] All of this, in my respectful view, supports a conclusion that, by treating Stanley’s pension as she did in the 1981 Order, i.e., as aproperty asset whose value could not be properly ascertained until the future contingencies about how it would be paid out were realized,Carter J. meant to divide the full value of the asset represented by Stanley’s pension benefits, in whatever form those benefits might take,whenever they might be received.

She did not intend to simply divide the value of the income stream it produced for Stanley during hislifetime, if that did not represent the entire value of the asset that was created through the input of family property.

As I see it, the Chambersjudge erred by not recognizing this. [46] The Chambers judge also erred, in my opinion, by concluding that the 1990 Order had varied the nature, as opposed to merelythe quantum, of Doris’s interest in Stanley’s pension benefits. [47] On that point, one of the reasons the Chambers judge gave for concluding that Doris was not entitled to a share of the survivorbenefit from Stanley’s pension was that, in her view, “the provisions of the [1981 Order] respecting the division of pension benefits wasvaried by [the 1990 Order]” (Chambers Decision at para 34).

With great respect, this is incorrect. Let me explain. [48] When the 1990 Order was made, s. 26 of the MPA permitted judges to vary orders respecting property division after spouses haddivorced, as in the case at hand. The relevant portions read as follows: 26(1) The court, in order to effect a distribution under this Part, may: … (

b) make any order that it considers fit in the circumstances whether or not it affects title to matrimonial property, and, without limiting thegenerality of the foregoing, the court may: … (xvi) vary, amend or discharge an order previously made under this Part or under The Married Persons’ Property Act, any previous MarriedPersons’ Property Act, The Married Women’s Property Act, being

chapter 304 of The Revised Statutes of Saskatchewan, 1953, or anyprevious Married Women’s Property Act, where: (

A) subject to subsection (2), the spouses are still spouses within the meaning of this Act; and (

B) there has been a substantial change in the circumstances warranting the variation, amendment or discharge; …

(2) Where a person is named in: (

a) an order under subclause (1)(b)(viii), (ix) or (xiv); or (

b) any order similar to an order mentioned in clause (

a) and the circumstances require the court to review the order with a view to grantinga discharge of the order or part of the order; or where such an order is made against the estate or interest of a person, an application for an order under subclause (1)(b)(xvi) may bemade, with leave of the court, by the person or his personal representative, whether or not the spouses to whom the order applied are stillspouses. [49] While s. 26 gave judges the power to amend orders respecting property division in family law matters, the power it conferredwas “substantive and not procedural” and did not “oust the Court’s inherent jurisdiction” to vary judgments respecting the division ofproperty (Kelly v Kelly (1986), (SK CA), 50 Sask R 101 (CA) at para 5).

Rather, s. 26 could be applied to vary, amendor discharge an order for property division where there had been a substantial or material change in circumstances warranting suchvariation, amendment or discharge (Marland v Nelson (1992), (SK KB), 107 Sask R 246 (QB) at para 10 [Marland];King v King, 2008 SKQB 60 at para 33, 325 Sask R 16). [50] As they existed in 1990, Rules 343A and 344 of The Saskatchewan Queen’s Bench Rules also permitted a court to reconsider itsjudgment. Those rules read as follows: 343A. Amendment of judgment or order

Any judgment or order may be amended: (

a) by the local registrar on written consent of the parties or by the court where there are clerical mistakes or errors arising from anaccidental slip or omission; or (

b) by the court where the judgment or order requires amendment in any particular on which the court should have but did not adjudicate orin any calculation arising out of a decision of the court. 344.

Further direct0ions after judgmentWhere in any action a judgment has been pronounced or an order has been made and such judgment or order has been formally drawn upand entered and it shall subsequently appear that further directions are necessary in order to insure to the party entitled to the benefit of suchjudgment or order, as to costs or otherwise, the relief to which he is entitled, the court may make such further or other order and give suchfurther or other relief as the nature of the case may require; provided that such further or other relief does not necessitate any variation ofthe said judgment or order as to any matter decided by the original judgment or order. [51] Those rules and their successors, and s. 26(3)(

p) and 26(4) of The Family Property Act, SS 1997, c F-6.3 (the successor to s. 26of the MPA), have been interpreted as providing courts with a very narrow power when it comes to the variation of orders for division offamily property. In short, they do not permit courts to vary the substance of an order of that nature unless there are exceptionalcircumstances (Marland at para 20; Slater v Slater, 2019 SKQB 93 at para 63; Storey v Zazelenchuk (1985), (SK CA),40 Sask R 241 (QB)).

Given that I have concluded that the 1981 Order divided the full value of Stanley’s pension benefit – including theappropriate portion of the survivor benefit - this means that the Chambers judge could not vary that order to provide otherwise. As shepurported to do so, she erred. The 1981 Order governs. [52] Further, and in any event, I see nothing in the record that supports the Chambers judge’s

interpretation of the 1990 Order asbeing a variation of the substance of the 1981 Order, at least insofar as it pertains to the nature of Doris’ interest in Stanley’s pensionbenefits. In that respect, it is important to begin by observing that the 1990 Order was not the product of an application to vary the 1981Order; it was the result of an application by Doris to have Stanley found in contempt and an application for directions. Moreover, I seenothing in the wording of the 1990 Order that speaks to an intention to disturb Doris’ tenant-in-common interest in Stanley’s pensionbenefits.

The only change made in the 1990 Order from the 1981 Order relates to the percentage of Stanley’s pension benefits to whichDoris was entitled, from 47% to 25.56%.

Given the context, and the wording of the 1990 Order, it would appear that the parties recognizedthat Stanley’s post-separation contributions to the pension and the fact that he was responsible for paying the income tax on any paymentsreceived under the plan had changed the value of the asset in a material way, and that a variation to the amount of Doris’s tenant-in-common share was necessary to achieve fairness. [53] However, in my view, there is nothing in the wording of the 1990 Order that suggests any change relating to the identification ofwhat comprises the pension benefits in which Doris had been granted a vested interest.

More to the point, nothing in the 1990 Order variedthe order that vested in Doris a tenant-in-common interest in a portion of Stanley’s “pension benefits, whenever received”. [54] In the result, the Chambers judge erred by concluding that the 1990 Order had effectively varied the 1981 Order by limitingDoris’s interest in Stanley’s pension benefits to a tenant-in-common share in the monthly benefit he had received while he was still alive. IV. Conclusion [55] For the foregoing reasons, I would allow the appeal, and grant the following order: (

a) Colette shall be added as a third party to the action; (b) 25.56% of the gross survivor benefits paid to Colette by CN Pension Benefits and Administration commencing January 1,2020, resulting from the death of Stanley are deemed to have been received by her in trust for Doris [trust funds]; and (

c) Colette shall pay the trust funds paid to her prior to the date of this judgment to Doris within sixty (60) days of the date of thisjudgment and shall pay any trust funds paid to her after the date of this judgment to Doris within ten (10) days of their receipt. [56] Given her success in the appeal, I would also award costs to Doris in this Court and the Court of Queen’s Bench, calculated inthe usual way. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.