[1] R.S.O. 1990, c. F.3.

[2] Ministry of the Attorney General, Toronto, 1995.

[3] References are to the law as of October 31, 2008.

[4] R.S.C. 1985, c.C.8. The CPP is, of course, federal legislation, but section 55.2 of the CPP effectively authorizes provinces to enact legislation permitting parties to contract out of the CPP credit-splitting provisions that otherwise apply upon breakdown of the spousal relationship. Ontario, however, has not enacted such legislation. This is discussed in more detail, below, in section V (“Other Issues”).

[5] See Ari N. Kaplan, Pension Law, Irwin Law, Toronto, 2006, pp. 96-97.

[6] Examples of such legislation include the Teachers’ Pension Act, R.S.O. 1990, c. T.1 and the Ontario Municipal Employees Retirement System Act, 2006, S.O. 2006, c. 2. Strictly speaking, the plans in question were “continued” by these Acts, as the plans were established under predecessor legislation.

[7] Submission by the Canadian Institute of Actuaries to the Ontario Expert Commision on Pensions (2007), pp. 6-7.

[8] For example, the employer could become insolvent, as pointed out by Keith Ambachtsheer, “Cleaning Up The Pension Mess: Why it will take more than money” in Backgrounder No. 78 (C.D.Howe Institute, Toronto, 2004), pp. 2-3. If insolvency occurs at a point when plan assets are insufficient to fund pension liabilities, employees may find their benefits reduced, perhaps quite substantially. (See discussion in Section II, below, under heading Wind-Up of Pension Plans.)

[9] Usually, of course, the years of highest earnings will be the employee’s final years with the employer, but that is not always the case.

[10] Jack Patterson, Pension Division and Valuation: Family Lawyers Guide (2nd ed.), Canada Law Book Inc., Aurora, 1995, p. 65.

[11] Kaplan, note 5, p. 100.

[12] The latter type of hybrid plan is sometimes referred to as a combination plan (OLRC, note 2, p. 13) or composite plan (Richard Shillington, Occupational Pension Plan Coverage in Ontario, statistical report prepared for the Ontario Expert Commission on Pensions, Infometrica Limited, 2007, p. 8).

[13] Kaplan, note 5, p. 102.

[14] Shillington, note 12, p. 14. It is not clear whether these figures exclude only Ontario employees in federal jurisdiction or whether they also exclude Ontario employees who are members of pension plans registered under the legislation of other provinces.

[15] Shillington, note 12, pp. 14-15.

[16] According to 2004 figures, over 80% of individuals who are members of a pension plan are in a defined benefit plan; see Kaplan, note 5, p. 3.

[17] Shillington, note 12, p. 31, cites figures showing that in 1997 there were 1,112,000 members in defined benefit plans, 147,000 in defined contribution plans and 77,000 in combination plans, while the corresponding numbers in 2006 were 1,352,000, 268,000 and 102,000.

[18] Shillington, note 12, p. 3. The numbers provided are for 2006.

[19] According to Shillington (note 12, p. 3), there 955,000 men and 469,000 women enrolled in Ontario jurisdiction pension plans in 1985.

[20] Shillington, note 12, pp. 10-12.

[21] See Lynn MacDonald, “Gendered retirement: The welfare of women and the ‘new’ retirement” in New Frontiers of Research on Retirement, Leroy O. Stone (ed.), Statistics Canada, Ottawa, 2006, p. 157.

[22] See Monica Townson, “The impact of precarious employment on financial security in retirement” in Stone (ed.), note 21, p. 364.

[23] Part-time employees may be in a better position than other non-standard workers because of legislative protections that apply where the employer offers a pension plan that covers full-time employees; however, as Townson notes, such protections are of no avail where the employer does not offer any pension plan: Townson, note 22, p. 373.

[24] Shillington (note 12, p. 45) cites Canada Revenue Agency figures showing that average reported pension income in 2004 for those aged 65 and over was $18,531 for males and $11,237 for females.

[25] 30 & 31 Vict., c. 3 (U.K.).

[26] Kaplan, note 5, p. 20.

[27] Some Ontario jurisdiction pension plans are exempted from the PBA.

[28] R.S.O. 1990, c. P.8.

[29] R.S.C. 1985, c. 32 (2nd Supp). Interestingly, section 31 of the PBSA provides that provincial pension benefits legislation is deemed to apply to PBSA plans in relation to the payment of benefits and the designation of beneficiaries where the provincial legislation is not inconsistent with the PBSA. This provision has been held to make provincial legislation allowing the attachment of pension benefits to enforce arrears in support apply to benefits from a federally-regulated pension plan notwithstanding the absence of attachment provisions in the PBSA itself: Vellow v. Vellow, [1996] B.C.J. No. 904; 134 D.L.R. (4th) 657; [1996] 7 W.W.R. 96; 74 B.C.A.C. 284; 19 B.C.L.R. (3d) 322; 12 C.C.P.B. 1; 62 A.C.W.S. (3d) 750 (B.C.C.A.). Further, section 25 of the PBSA generally makes federally-regulated pensions subject to provincial matrimonial property laws. Despite this, it appears that some administrators of federally-regulated plans refuse to follow provincial law; see Thomas G. Anderson, “Pensions” in Federation of Law Societies of Canada 2006 National Family Law Program, p. 5.

[30] See subsections 4(4) to (6) of the PBSA and section 4 of the Pension Benefits Standards Regulations, 1985 (SOR/87-19) and Schedule I to the regulations. Pensions for federal public servants are provided under the Public Service Superannuation Act (R.S.C. 1985, c. P-36). There are several other statutes providing pension plans for persons who might broadly be described as employees of the federal government, such as, for example, the Royal Canadian Mounted Police Superannuation Act ( R.S.C. 1985, c. R-11 ).

[31] R.R.O. 1990, Regulation 909.

[32] Prince Edward Island has enacted pension benefits legislation (the Pension Benefits Act, S.P.E.I. 1990, c. 41) but the legislation has not been proclaimed in force.

[33] Curiously, despite the 1970 agreement, there appears to be no corresponding exempting provision for plans in which a plurality of members falls under federal jurisdiction.

[34] See Kaplan, note 5, p. 116. In July of 1993, the Canadian Association of Pension Supervisory Authorities (CAPSA) released a Proposed Multilateral Agreement (later revised) under which the pension legislation of the jurisdiction of registration would govern all matters related to pensions both for employees within the jurisdiction and those without; see Ian J. McSweeney, “Pension and Plan Member Relations” in Pension and Plan Member Relations (Tab 1), Emond Montgomery, 1997, p. 9. However, concerns were raised about that proposal, and more than fifteen years later efforts to replace the reciprocal agreements are still continuing. On October 21, 2008, CAPSA released a Consultation Document entitled Proposed Agreement Respecting Multi-Jurisdictional Pension Plans; the proposed agreement would see “plan matters” (matters affecting the plan as a whole, such as funding and registration) regulated by the jurisdiction having a plurality of plan members while the rules of the jurisdiction of the individual member would govern “entitlement matters” (matters dealing with individual rights, such as vesting and surplus distribution). If adopted, it would thus reflect what in any case seems to be the likely legal position. A multilateral agreement would presumably be implemented under section 93 of the PBA, which provides that the Minister of Finance may enter into agreements with authorities in such other jurisdictions as are “prescribed” that address the application of the PBA and the legislation of the other jurisdiction to “multi-jurisdiction pension plans” and the supervision and regulation of such plans. Where an agreement of this nature so specifies, subsection 95(5) goes on to provide that the legislation of one jurisdiction applies to the exclusion of the other to the extent specified in the agreement.

[35] R.S.C. 1985, c. 1 (5th Supp.).

[36] See paragraphs 6 and 7 of subsection 47(3) of the General regulation under the PBA.

[37] Kaplan, note 5, p. 127.

[38] Kaplan, note 5, p. 30.

[39] Section 35.

[40] In fact, the Human Rights Code (R.S.O. 1990, c. H.19) prohibits mandatory retirement, subject to certain exceptions.

[41] Kaplan, note 5, p. 281.

[42] PBA, s. 41.

[43] Section 41 provides that the commuted value of the early retirement pension must not be less than the commuted value of the pension that would have been payable at the normal retirement date; in other words, the early retirement pension must be at least actuarially equivalent to the normal retirement date pension.

[44] For example, where a full actuarial reduction is imposed, someone who retires at age 60 instead of age 65 would see a decrease of about 35 per cent (and this does not even reflect the impact of the forgone service credits and possible salary increases that would have been or may have been earned in the five extra years). See Jennifer Greenan, Morneau Sobeco Handbook of Canadian Pension and Benefit Plans, 12th ed., CCH Canadian Limited, 2002, pp. 38-39.

[45] Kaplan, note 5, p. 283.

[46] PBA, ss. 36-37. It should be noted that, although not stated explicitly in the PBA, the vesting rules in sections 36 and 37 apply only in respect of the basic pension benefit and not to “ancillary benefits” that can be offered under a pension plan in addition to the minimum benefits required under the PBA, such as disability pensions, unreduced early retirement pensions and other benefits enumerated in section 40. In the case of ancillary benefits, the benefit does not become vested until the employee meets the conditions for eligibility set out in the plan. See Kaplan, note 5, p. 269.

[47] PBA. subsection 63(1).

[48] PBA, subsections 67(1) and (2).

[49] Subsection 50(2) creates a limited exception to this in the case of employees whose rights under a pension plan registered before 1988 vested under the pre-1987 vesting rules by allowing the employee to take 25 per cent of the commuted value of the deferred pension as an immediate cash payment.

[50] PBA, s. 42.

[51] PBA, s. 49 and s. 51.1 of the General regulation under the PBA.

[52] The Canada Revenue Agency indicates on its web site that the YMPE amount for 2008 is $44,900. Two per cent of this amount would equal $898 or approximately $75 a month.

[53] P.B.A., s. 50.

[54] Kaplan, note 5, p. 248.

[55] Section 51 of the FLA defines “domestic contract” as

…a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement.

A “marriage contract” is effectively defined in section 52 as an agreement between married persons or persons intending to marry

…in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their affairs.

Section 54 refers to a “separation agreement” as agreement between persons who once cohabited but are living separately and apart

…in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs.

[56] See Trick v. Trick (2006), 81 O. R. (3d) 241 (O.C.A.).

[57] See section 56 of the General regulation under the PBA.

[58] Anderson, note 29, p. 28.

[59] OLRC, note 2, pp. 43-44.

[60] This would appear to be the case even if the member remarried and the subsequent spouse had not waived her entitlement; see note 201.

[61] Section 44.

[62] Subsection 44(2) provides that the commuted value of the joint and survivor pension must not be less than the commuted value of the pension that would have been payable to the member as a single life pension.

[63] Patterson, note 10, p. 44.

[64] Section 44 of the PBA provides that

[t]he amount of the pension payable to the survivor of the former member and the spouse of the former member shall not be less than 60 per cent of the pension paid to the former member during the joint lives of the former member and his or her spouse.

While this wording would seem to suggest that the pension could be reduced to the 60 per cent level if the spouse predeceases the former member, the common assumption seems to have been that the reduction occurs only where the former member predeceases the spouse. See, for example, David MacFarlane and Ian J. F. McSweeney, Pension Benefits Law in Ontario, Thomson Carswell, Toronto, 2003, p. PBA-144.11; OLRC, note 2, p. 15; Pension Valuators of Canada web site (http://www.pension.ca/), Glossary of Terms.

[65] Ray Henry, “Public Sector Pension Plans: Current Challenges and Future Directions”, presentation given as part of Labor and Worklife Program, Harvard Law School, October 27th-28th, 2005.

[66] OLRC, note 2, p. 19.

[67] Kaplan, note 5, p. 414. Subsection 14(0.1) of the General regulation under the PBA provides that this requirement does not apply where all benefits under a pension plan are defined contribution benefits.

[68] Kaplan, note 5, pp. 412-413.

[69] The PBA recognizes two categories of pension plan in respect of which the employer is not required by the PBA to make contributions in respect of a going concern liability or solvency deficiency; these are “multi-employer pension plans (MEPPs) and “jointly-sponsored pension plans” (JSPPs). A MEPP is a plan that covers employees of two or more employers that is established by agreement, statute or municipal by-law; if a plan is a MEPP, it must be administered by a board of trustees of whom at least half are representatives of the members. A JSPP could be a plan that covers employees of two or more employers, but it could also be a single employer plan. To be a JSPP the plan must, among other things, be contributory and provide defined benefits, be subject to joint decision-making by the employer or employers and plan members or their representatives regarding plan terms and administration and require that contributions in respect of any going concern unfunded liability or solvency deficiency be provided by plan members. (In the case of other pension plans, the latter responsibility would lie on the employer or employers.) A MEPP can be amended to reduce benefits; a JSPP, like other pension plans, cannot except in the case of a wind-up (as to which, see below). See Kaplan, note 5, pp. 96-98, 319-320 and 323-324, subsections 8(1) and (2), clause 8(1)(e) and sections 14 and 77 of the PBA and section 3.1 of the General regulation under the PBA.

[70] Kaplan, note 5, pp. 417-418.

[71] Kaplan, note 5, p. 268.

[72] See Kaplan, note 5, p. 580 and pp. 582-583 and sections 10 and 10.1 of the General regulation under the PBA.

[73] Kaplan, note 5, p. 407.

[74] Kaplan, note 5, p. 410.

[75] The Superintendent is the chief executive officer of the Financial Services Commission of Ontario. See section 5 of the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28.

[76] Kaplan, note 5, p. 504.

[77] See section 69 of the PBA.

[78] Kaplan, note 5, p. 511.

[79] See clause 74(1)(b) of the PBA. Subject to some exceptions, their benefits are also locked in; see Kaplan, note 5, p. 533.

[80] In the case of an individual termination, entitlement to an immediate pension would render the portability options unavailable. Even on wind-up, however, the portability options are not available to someone who is already in receipt of a pension. See Kaplan, note 5, pp. 533-534 and subsections 42(3) and 73(2) of the PBA.

[81] Kaplan, note 5, pp. 535-536. Note, however, that the amount of the pension is still based on the actual years of service as of the wind-up date.

[82] Kaplan, note 5, pp. 536-537.

[83] Subsection 79(4).

[84] Clause 8(1)(b) of the General regulation under the PBA. (Subsection 8(3) of the regulation provides that this provision ceases to apply after 2009; however, previous versions of the subsection provided for earlier “sunset” dates. At the time of writing it was not known whether the government would once again extend the application period.) What is appropriate is determined by the Superintendent; generally, two-thirds of the class has been considered to be appropriate, but the determination is made on a case-by-case basis and a lesser proportion may be considered appropriate in a particular case. See Kaplan, note 5, p. 579.

[85] PBA, section 77.

[86] Kaplan, note 5, p. 545.

[87] PBA, section 85, paragraph 3.

[88] PBA, section 85, paragraphs 4 and 5 and Kaplan, note 5, p. 549. For an explanation of MEPPs and JSPPs, see note 69.

[89] Preamble to the FLA.

[90] FLA, subsection 5(7).

[91] Section 4 of the FLA defines “valuation date” as the earliest of the separation date, the date of divorce, the date the marriage is declared a nullity, the date an application is made for an order based on a danger of improvident depletion of family property under subsection 5(3) and the day before the date of a spouse’s death.

[92] See the definition of “net family property” in subsection 4(1) of the FLA.

[93] FLA, subsection 4(5).

[94] See, for example, section 56 of British Columbia’s Family Relations Act, R.S.B.C. 1996, Chapter 128.

[95] See Boileau v. Boileau, [2003] O. J. No. 607 (S.C.J.); LeVan v. LeVan (2008), 90 O.R. (3d) 1 (O.C.A.).

[96] Berend Hovius and Timothy G. Youdan, The Law of Family Property, Carswell, Scarborough, 1991, p. 202.

[97] R.S.O. 1980, c. 152.

[98] Hovius and Youdan, note 96, p. 199-201.

[99] FLA, subsection 4(1). The definition includes property over which a spouse has a power of appointment that could be exercised in her own favour and property disposed of a by a spouse who retains a power to revoke the disposition or to consume the property. Strictly speaking, a spouse with such a power does not own the property, but she clearly has control over it and the inclusion of such property is a necessary anti-avoidance measure. See Hovius and Youdan, note 96, p. 267.

[100] See clause (c) of the “property” definition in subsection 4(1) of the FLA. In the legislation of four other provinces, the definitions of “family property” or similar terms expressly refer to rights under a pension plan; the provinces in question are British Columbia (Family Relations Act, note 94, s. 58); Manitoba (The Family Property Act, C.C.S.M. c. F25, s. 1); Prince Edward Island (Family Law Act, R.S.P.E.I. 1988, F.-2.1, s. 4); and Québec (Civil Code of Québec, S.Q., 1991, c. 64, a. 415). In the other five provinces, the courts have held that pensions constitute family property notwithstanding the lack of a reference to pensions in the relevant legislation; those provinces are Alberta (see Herchuk v. Herchuk (1983), 35 R.F.L. (2d) 327 [Alta.C.A.]); New Brunswick (see Schwartz v. Schwartz (1997), 188 N.B.R. (2d) 86 (N.B.C.A.); Miller v. Miller, (2003), 259 N.B.R. (2d) 132 (N.B.C.A.); Newfoundland and Labrador (see Hierlihy v. Hierlihy (1984), 48 Nfld. & P.E.I.R. 142; 142 A.P.R. 142 (Nfld.C.A.); Nova Scotia (see Clarke v. Clarke (1990), 73 D.L.R. (4th) 1 [S.C.C.]) and Saskatchewan (see Tataryn v. Tataryn, [1984] S.J. No. 205, 6 D.L.R. (4th) 77 [Sask.C.A.]).

[101] See the definition of “spouse” in subsection 1(1) of the FLA. The definition creates an exception to the requirement of legal marriage where a person has entered into a voidable or void marriage in good faith. Subsection 1(2) provides that the reference to “marriage” in the subsection 1(1) definition includes a polygamous marriage if it occurred in a jurisdiction where such marriages are legally recognized as valid.

[102] Subsection 1(1) of the PBA defines “spouse” as

…either of two persons,

(a) are married to each other, or

(b) are not married to each other and are living together in a conjugal relationship,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child….

[103] See the definition of “spouse” in section 29 of the FLA, which applies for purposes of Part III, dealing with support obligations, as well as the “cohabitation agreement” provisions in Part IV.

[104] Only two provinces cover so-called “common law spouses” in their family property legislation, these being Manitoba (see The Family Property Act (note 100), subs. 2.1(1)) and Saskatchewan (see definition of “spouse” in subs. 2(1) of The Family Property Act, S.S. 1997, c. F-6.3). However, while Québec’s matrimonial property rules do not apply to unmarried cohabitants generally, they do apply to those who have entered into a “civil union”. (See article 521.6 of the Civil Code of Québec, S. Q., 1991, c. 64.) Prior to the Supreme Court of Canada decision in Nova Scotia (Attorney General) v. Walsh, [2002] S.C.J. No. 84, [2002] 4 S.C.R. 325; 221 D.L.R. (4th) 1, 32 R.F.L.(5th) 81, some had argued that the exclusion of so-called “common law spouses” was unconstitutional as being in conflict with the equality rights provisions of the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11); see, for example, Gary S. Joseph, Section 15 of the Charter—Equality Rights and Marital Status Discrimination: Rights of the Unmarried Cohabitant Upon Breakdown of the Relationship (1990) 26 R.F.L. (3d) 235. However, in Walsh, that view was rejected. It should be noted that a common law spouse may nevertheless have a claim to share in property under the general law of unjust enrichment; see Barbro E. Stalbecker-Pountney and Winifred H. Holland, Cohabitation: The Law in Canada, Carswell, Toronto, 1990, p. 2-6 and Bigelow v. Bigelow, [1995] O. J. No. 2395 (O.C.A.) where a constructive trust was imposed in respect of a pension. However, some consider that the law of unjust enrichment does not provide an adequate remedy (see the dissent of L’Heureux-Dubé, J., in Walsh, paras. 164-169), and in any case it certainly does not provide an entitlement in every case where common law spouses, one of whom is a member of a pension plan, separate. (For an example of a case in which the court found that there was no unjust enrichment and accordingly refused to impose a constructive trust on a common law spouse’s pension entitlement, see Janakowski v. Janakowski, [2000] O. J. No. 2650 (O.S.C.).)

[105] See note 55 for definitions of the terms “domestic contract”, “marriage contract” and “separation agreement”.

[106] FLA, subsection 2 (10) and 52(2).

[107] See paragraph 1 of subsection 4(2) of the FLA.

[108] See clause (b) of the definition of “net family property” in subsection 4(1) of the FLA.

[109] FLA, clause 5(6)(a).

[110] FLA, clause 5(6)(b).

[111] FLA, clause 5(6)(f).

[112] FLA, clause 6(6)(e). An example of where this ground might apply would be in the case of a short-lived relationship where one spouse owned what became the matrimonial home prior to marriage, since the value of a property acquired by a spouse before marriage that becomes a matrimonial home, unlike other pre-nuptial property, cannot be deducted in determining that spouse’s net family property; see Hovius and Youdan, note 96, p. 422. Hovius and Youdan also point out that clause 5(6)(e) refers to the “period of cohabitation” rather than the “period of marriage”, suggesting that the entire time that the two parties lived together would be taken into account in determining whether the presumptive entitlement would be disproportionately large.

[113] FLA, clause 5(6)(h).

[114] It had been suggested that it might be appropriate for a court to award an amount greater or lesser than half the difference between the spouse’s net family properties where an asset owned by one spouse undergoes a dramatic increase or decrease in value shortly after the valuation date; see Hovius and Youdan, note 96, pp. 446-447. However, it appears unlikely that the courts would make such an award where the change in value is unrelated to the conduct of the owning spouse; see Serra v. Serra, [2007] O .J. No. 446, 36 R.F.L. (6th) 66 (O.S.C.J.); LeVan v. LeVan, note 95.

[115] FLA, subsection 5(2); Hovius and Youdan, note 96, p. 539.

[116] R.S.O. 1990, c. S.26.

[117] SLRA , section 45.

[118] O. Reg. 54/95, s. 1.

[119] SLRA, s. 46.

[120] FLA, subsection 6(6).

[121] The specific inclusion of pension rights in the FLA definition of “property” may be contrasted with the situation that had prevailed under the former FLRA, where pension rights were not mentioned in the definition of “family assets” and the courts had concluded that they were not subject to the FLRA provisions requiring equal division of such assets. (See, for example, St. Germain v. St. Germain (1980), 14 R.F.L. (2d) 186 (O.C.A.).) Whether the FLRA case law on this point was in fact sound seems very doubtful, however, in light of the later Supreme Court of Canada decision in Clarke v. Clarke (note 100), which held that a right under a pension plan was “matrimonial property” for purposes of Nova Scotia’s family law legislation, even though that legislation did not expressly address the question of pensions.

[122] See, for example, Nix v. Nix (1987), 11 R.F.L. (3d) 9 (O.H.C.).

[123] James MacDonald and Ann Wilton, The 2008 Annotated Ontario Family Law Act, Thomson Carswell, Toronto, 2007, p. 71. See, for example, Ward v. Ward (1988) , 13 R.F.L. (3d) 173 (O.H.C.), Flynn v. Flynn (1989), 20 R.F.L. (3d) 173, Bascello v. Bascello (1995), 26 O.R. (3d) 342, [1995] O. J. No. 2989 (O.C.[G.D.]) and Green v. Green (2007), 38 R.F.L. (6th) 378, [2007] O.J. 454 (O.S.C.J.). Interestingly, the latter case shows that the question of whether unvested rights are property can still loom large despite the relatively short vesting period for post-1986 service provided for in the PBA, as Green dealt with a supplementary employee retirement plan that had vesting requirements that were much stricter than those set out in the PBA.

[124] See Hovius and Youdan, note 96, p. 478, n. 34.

[125] Where an employee terminates employment prior to vesting, she is not entitled to any employer contributions but only to a return of her own contributions with interest: see OLRC, note 2, p. 107.

[126] Hovius and Youdan, note 96, pp. 494-495; Ian J. McSweeney and Douglas Rienzo, Pensions and the Family Law Act: Valuation and Settlement of Pensions and Similar Employee Benefits on Marriage Breakdown , Law Society of Upper Canada (Bar Admission Course), 2005, p. 488.

[127] One expert has suggested that a pension in a defined benefit plan is frequently worth two to two and one-half times the contributions; see Thomas G. Anderson, note 29, p. 32.

[128] Patterson, note 10, p. 21.

[129] Patterson, note 10, pp. 21-22.

[130] This will usually be an actuary or someone with a mathematical background and training in property valuation.

[131] Boston v. Boston, [2001] 2 S.C.R. 413, at para. 32. Although the Court seemed to assume that valuations are always carried out by actuaries, that it not the case; as indicated in note 130, the valuator may be a non-actuary with a mathematical background and training in property valuation. It is true that solvency valuations of a defined benefit pension plan must be performed by a fellow of the Canadian Institute of Actuaries (see section 14 of the General regulation under the PBA and the definition of “actuary” in section 1 of the regulation); however, there is no requirement in Ontario that a valuation of a spouse’s interest in a pension plan for family law purposes be performed by a fellow of the Institute, and many such valuations are in fact performed by non-actuaries.

[132] Some cases decided shortly after the coming into force of the FLA used the contributions approach in valuing rights under a defined benefit plan, but expert opinion seems to be unanimous in holding that that approach is generally inappropriate; see Hovius and Youdan, note 96, pp. 494-497, McSweeney and Rienzo, note 126, p. 485, Patterson, note 10, p. 58. One may infer that the Supreme Court of Canada is of the view that the present value approach is the preferred approach for defined benefit pensions from the discussion of the differences between defined contribution plans and defined benefit plans at paragraphs 29 to 33 of the Court’s decision in Best v. Best, [1999] 2 S.C.R. 868 and from its approval of the termination method and (as an alternative in some situations) the retirement method, both of which are present value approaches.

[133] Section 56 of the General regulation under the PBA prescribes a method of valuation for purposes of the “50 per cent” rule in subsection 51(2) of the PBA, but while this can be relevant to the question of how the equalization requirement should be satisfied once the net family properties of the spouses have been determined, it is not prescribed as the method for determining value for net family property purposes and generally has not been used for such purposes.

[134] See, for example, Kaplan, note 5, p. 305.

[135] Best v. Best, note 132, paras. 88-93. In discussing the possibility that the retirement method might be used in some cases, the Court seemed to suggest that it would be appropriate where the likely retirement date was fairly close at the time of valuation, as there would be a lesser degree of speculation than in the case where retirement would probably only occur at a more remote date.

[136] Humphreys v. Humphreys (1987), 7 R.F.L. (3d) 113, at p. 121 (O.H.C.J.).

[137] This seems to be the point being made by certain judicial authorities and other sources cited in Hovius and Youdan, note 96, p. 501.

[138] Humphreys v. Humphreys, note 136, at p. 121.

[139] The member may die without having retired and come into receipt of a pension.

[140] Note 123.

[141] Ironically, the Bascello court used the real interest retirement method even though the case before it involved a private sector plan that was not indexed. The court’s reasoning was that the plan sponsor would have to fund the plan at a level sufficient to ensure ability to pay pensions based on the plan members’ highest years of earnings; however, as Patterson, note 10, p. 175 and p. 194, observes, actuarial valuation for plan funding purposes is not based on the same principles as valuation of the interest of an individual member for marriage breakdown purposes. In the case of the latter, for plans that are not indexed, actuaries would typically use a higher discount rate reflecting market rates rather than the real interest rate, which results in a lower value than a discount based on real interest rates; see Patterson, note 10, p. 173.

[142] Patterson, note 10, pp. 127-128.

[143] Her age and years of service at valuation date adding up only to 66, with her years of service treated as frozen, the employee would not achieve factor 90 for another 24 years, at which time she would be 69 years old, four years past the normal retirement date.

[144] The employee’s age and years of service at valuation date add up to 66; if she continues in her employment to age 57, she will at that time have 33 years of service and meet the factor 90 qualification.

[145] See, for example, Deroo v. Deroo (1990), 28 R.F.L. (3d) 211 (O.S.C.).

[146] See, for example, Weise v. Weise (1992), 99 D.L.R. (4th) 524, 12 O. R. (23d) 492 (O.C. [G.D.]. Such a discount might not be allowed where the possibility of pre-retirement termination is viewed as remote: Alger v. Alger (1989), 21 R. F. L. (3d) 211 (O.S.C.).

[147] Patterson, note 10, p. 216.

[148] See James G. McLeod, Annotation to Best v. Best (1999) 49 R. F. L. (4th) 10, at 13.

[149] At para. 168. In Best v. Best, note 132, paras. 43 and 44, the Supreme Court of Canada referred to the method used in that case as “a termination method”, notwithstanding its awareness that it did not reflect a pure termination approach.

[150] Standard, p. 4.

[151] Standards, para. 4320.22.

[152] Standards, para. 4330.07.

[153] [1995] O. J. No. 4147, 27 O.R. (3d) 255, affirming [1993] O. J. No. 2093, 15 O. R. (3d) 521.

[154] The seeming contradiction in selecting the date on which the employee would first qualify for an unreduced pension as the likely date of retirement but valuing the pension as if it were a reduced pension was not explained. The decision is strongly criticized as doing “a real disservice to the non-member spouse” by Catherine D. Aitkin in “An Overview of the Treatment of Pensions under Ontario Family Law” in Patterson, note 10, pp.277-355, at p. 309.

[155] James G. McLeod, “Ontario” in James G. McLeod and Alfred A. Mamo, eds., Matrimonial Property Law in Canada, Thomson Carswell, Toronto, 1980, p. O-65.

[156] The term “separation date” is used here in order to make the discussion more readily understandable. The proper term is, of course, “valuation date”, which could in some cases be a date other than the separation date. See note 91.

[157] See McLeod, note 148, p. 15. This view also formed part of the basis for the minority dissent in Best, note 132.

[158] Note 132, para. 87.

[159] See, for example, Forster v. Forster (1987), 38 D. L. R. (4th) 481, 59 O.R. (2d) 609, [1987] O. J. No. 1167 (O.H.C.J.).

[160] See, for example, Rezler v. Rezler, [1992] O.J. No. 2438 (O.C. [G.D.]) The court in Bascello (note 123) recommended this approach where there was no independent evidence to support either spouse’s testimony concerning the member’s spouse’s likely retirement date.

[161] The Court rejected the use of a presumption of the earliest unreduced retirement date in Kennedy v. Kennedy, [1996] O. J. No. 1167 and the use of a mid-way point presumption in Huisman v. Huisman, [1996] O. J. No. 2128.

[162] Note 132, para. 103-104.

[163] The Court allowed that where the retirement method was used, resort to hindsight evidence as to the retirement age might be appropriate. Note 132, para. 105.

[164] The arguably bizarre result in Best itself was that the employee was assumed to have retired at age 57.4 years, even though he did not in fact retire until approximately four years later and moreover while the case was still before the courts.

[165] Note 132, para. 104.

[166] The OLRC made a recommendation to similar effect, but appears to have conceived of it as a fixed rule, and not a mere presumption rebuttable on the basis of independent evidence; see OLRC (note 2), p. 130.

[167] Consider a final average plan that limits the accrual of service credits to 35 years. If the member reaches this limit before attaining the age that lies at the mid-way point between the normal retirement date and the earliest unreduced retirement date, he is unlikely to continue in employment to the mid-way point, since otherwise he would be working for only a relatively small amount more than he would receive by way of a pension.

[168] An exception may lie where there the individual concerned has a serious health problem that is likely to result in an early death; see E. Diane Pask and Cheryl A. Hass, Division of Pensions (Carswell, Toronto, 1990), p. V-13.

[169] See, for example, Jack Patterson, “Determining a Realistically Low Value for Employee’s Pension (in Spite of Unrealistically Large Claims Being Made by the Spouse)”, (1987) 1 C.F.L.Q. 365-384, at 371.

[170] As Pask and Hass (note 168, p. V-12) wryly note,

[a]ccording to the respective mortality tables, individuals who purchase life insurance have higher mortality rates than do annuity purchasers.

[171] Pask and Hass, note 168, p. V-12.

[172] This is the “GAM83” (1983 Group Annuity Mortality Table) published in Transactions of the Society of Actuaries, vol. XXXV, pp. 880-881.

[173] McSweeney and Rienzo, note 126, p. 498.

[174] Best v. Best , [1992] O. J. No. 1464, 9 O.R. (3d) 277.

[175] Standards, para. 4320.27.

[176] Standards, paras. 4330.10 to 4330.13. The LCO understands that, as in the case of the currently prescribed mortality table, the direction concerning interest rates is under review by the Institute.

[177] The Standards of Practice direct an actuary to “assume continuance of the plan’s established practice or current policy” with regard to ad hoc indexing; see para. 4320.24.

[178] Submission of the Canadian Institute of Actuaries to the Law Commission of Ontario, August 2008, p. 8.

[179] The reference to valuation may be somewhat misleading, in that the courts have held that the FLA requires that the pension rights must always be valued, even if settlement takes the form of an “if and when” arrangement (as to which, see below); see Marsham v. Marsham (1987), 59 O. R. (2d) 609, 7 R.F.L. (3d) 1 (H.C.J.).

[180] Pask and Hass, note 168, p. VII-7.

[181] See section 9 of the FLA.

[182] Note 131.

[183] Christine Davies, The Ever-Changing Picture of Support and Other Developments (2002-2003), 20 C.F.L.Q. 213-241, at 237.

[184] Boston v. Boston, note 131, para. 57.

[185] This point was made in Walker v. Walker, [2001] O. J. No. 4081 (Ont. Sup. Ct. Just.), discussed in G. Edmond Burrows, Disability Benefits and Other Assets (2004-2005), 23 C.F.L.Q. 145-198, at 173.

[186] The PBA permits this subject to certain restrictions; see discussion below.

[187] OLRC, note 2, p. 37.

[188] It should be noted that subsection 51(1) of the PBA provides that a domestic contract or order made under Part I of the FLA is not effective to require payment of a pension benefit before the earlier of the member’s normal retirement date and the date on which the pension commences, which would seem to suggest the possibility of an “if and when” arrangement requiring payment to the non-member spouse to begin at the member’s normal retirement date if the member postpones retirement beyond that date; however, precisely how such an arrangement would be implemented is not clear, and such payment to the non-member spouse may in any case be prevented by the ITA. (See MacFarlane and Sweeney, note 64, p. 144.30.)

[189] Julien D. Payne and Marilyn A. Payne have remarked (in Canadian Family Law [2nd ed.], 2006, p. 462), that

[i]n theory, it remains open to question whether an “if and when” order for the sharing of pension benefits upon maturity is consistent with a strict interpretation of the express provisions of the Family Law Act. However, necessity is the mother of invention and an “if and when” approach may be essential in order to facilitate equitable and practical discharge of an equalization entitlement.

[190] See subsection 2(10) of the FLA, which provides that a domestic contract generally prevails over FLA requirements.

[191] Less, of course, the present value at marriage where the member spouse had joined the pension plan prior to marriage.

[192] For a dramatic illustration of this, see Pask and Hass, note 168, pp. III-23 to III-28. The authors posit a hypothetical fact situation in which the marriage lasted for the first fifteen of the thirty years during which the member spouse was employed by the plan sponsor; if time ratios were used, the “if and when” approach would give the non-member spouse twenty-five per cent of the pension benefits when the pension came into pay, while use of value ratios would give the non-member spouse only a little over four per cent.

[193] See Neil Campbell, “Division of Pensions Under the Ontario Family Law Act: A Comment on Marsham v Marsham and Humphreys v. Humphreys” in (1988) 7 Can. J. Fam. L. 79-92, at 89. In Marsham (note 179), Walsh, J. of the Ontario High Court of Justice had held that an “if and when” approach that bypassed the valuation step was contrary to the FLA. Somewhat ironically, he ultimately ordered that the pension benefits be shared when the pension came into pay using a ratio of time rather than value; while he raised the question of whether this gave the non-member spouse a share of benefits that were earned after the marriage breakdown, he indicated that he was ordering as he did only because the member spouse had submitted that the other spouse’s share should be calculated on the basis of a time ratio (which would have been less advantageous to the member).

[194] There was no need for the Court to do so since it agreed with the trial judge’s decision that the equalization obligation should, in light of the particular facts of the case, be satisfied through payment by instalments. Interestingly, the Ontario Court of Appeal has firmly rejected an “if and when” approach in the context of the post-separation date exercise of stock options as being inconsistent with scheme of the FLA; see Ross v. Ross, [2006] O. J. No. 4916, 83 O.R. (3d) 1, 277 D.L.R. (4th) 478.

[195] R.R.O. 1990, Reg. 909, s. 56.

[196] OLRC, note 2, p. 44. The obvious solution would be for the member to make up the balance through monthly remittances to the non-member spouse, but this, of course, eliminates one of the advantages of an order or agreement that imposes a trust on the plan administrator rather than on the member-spouse, that being that the spouses would not be required to have further dealings with each other on pension issues. Further, as was noted by Sheryl Smolkin and Janet Downing,

…the spouse would have no further recourse against the plan if the member retires out of the country and stops sending the top-up checks.

(“Pension Credit-Splitting Pitfalls” in Canadian Bar Association – Ontario 1993 Institute of Continuing Legal Education Family Law: Voodoo Economics for Women, p. 30.)

[197] OLRC, note 2, p. 44.

[198] Presumably the limit would be set at the point at which the member spouse’s equalization debt would be satisfied; however, while this type of arrangement is more consistent with what the FLA presumably intended than other types of “if and when” arrangements, it obviously could be more burdensome for plan administrators.

[199] This was pointed out by the Ontario Municipal Employees Retirement System in its Submission to the Ministry of the Attorney General on the Ministry of Finance/Ministry of the Attorney General Discussion Document “Valuing and Dividing Pensions at Relationship Breakdown”, April 5, 2006, pp. 3-4.

[200] Pask and Hass, note 168, p. VII-20.

[201] This was asserted in Submission of the Ontario Bar Association to the Ministry of the Attorney General on Pension Division Reform, November 30th, 2007, p. 6. However, while a former spouse as such is not entitled to a pre-retirement death benefit under section 48 of the PBA, a separation agreement or order could assign to her an interest in the benefit, at least where there was at the time the agreement or order was made no subsequent spouse; in that case, even if the member spouse later acquired another spouse, an agreement or order assigning part of the death benefit to the former spouse would be enforceable and binding on the plan and the surviving current spouse: Stairs v. Ontario Teachers’ Pension Plan Board, [2004] O. J. NO. 331, 70 O.R. (3d) 61 (O.C.A.). (Query, whether an agreement or order to similar effect would be so enforceable and binding where the member had already acquired another spouse before the agreement or order was made. The case of Suchotawsky v. Metropolitan Life Insurance Company, [1993] O.J. No. 1650 (O.C.J. [G.D.]) suggests that it might. There, a court had, pursuant to a divorce judgment, ordered that the former wife should receive a share of the pre-retirement death benefit under the husband’s pension plan in the event that he died prior to retirement; however, the member had previously designated as beneficiary another individual with whom he was cohabiting but who had not lived with him long enough to qualify as a “spouse” under the PBA definition. It was nevertheless held that the former spouse was entitled to the benefit. Of course, given the scheme of section 48, which accords precedence to spouses, it cannot be said with certainty that the same result would have obtained had the individual in question possessed spousal status under the PBA at the time of the order.)

[202] The annuity payments must not begin before the earliest date on which the member would have been entitled to have his pension come into pay under the pension plan.

[203] McSweeney and Rienzo, note 126, p. 488.

[204] This possibility was raised in two submissions to the LCO: Ontario Bar Association, OBA Submission to the Law Commission of Ontario on Division of Pensions Upon Marriage Breakdown, August 15th, 2008, p. 25, and Ontario Teachers’ Pension Plan, Dividing pensions on marriage breakdown A fair and simple approach, August 15th, 2008, p. 13.

[205] Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick and the territories all use a version of the ISM; it is also the method used under the federal Pension Benefits Division Act (S.C. 1992, c. 46, Sch.II), which applies to federal government employees. Under the federal PBSA, which applies in respect of federal jurisdiction private sector employees, pension division is generally governed by the relevant provincial family property law; however, the PBSA does allow a member to make an assignment to a former spouse or common law partner that has the effect of making both ISM and DSM solutions accessible.

[206] British Columbia, Nova Scotia and Newfoundland and Labrador use a DSM approach.

[207] The term “Deferred Settlement Method” appears to have been conceived by the Canadian Institute of Actuaries Task Force on the Division of Pension Benefits Upon Marriage Breakdown, which presented draft papers on the subject in 1997 and 1998 and published a final report, Division of Pension Benefits Upon Marriage Breakdown, in 2003.

[208] Anderson, note 29, p. 5. British Columbia’s Family Relations Act uses the term “limited member” to describe the non-member spouse’s status vis-à-vis the plan.

[209] Arguably, it is somewhat misleading to characterize the various provincial regimes simply in terms of whether they have adopted the ISM or the DSM, for in some ostensibly ISM provinces the parties are offered a choice of options, some of which reflect elements of a DSM approach, and in some supposedly DSM provinces the parties are offered a choice of options, some of which reflect elements of an ISM approach. For example, in Alberta, which is usually identified as an ISM province, the parties can adopt a DSM solution (albeit only if the member is within ten years of pensionable age and the plan is willing to offer the non-member spouse a separate pension). And British Columbia, which is usually identified as a DSM province, offers in addition to the option of a separate pension for the limited member the option of a “transfer out” to another plan, a locked-in retirement vehicle or deferred annuity (albeit that the transfer does not occur until the member becomes eligible to retire or terminates his membership in the plan).

[210] See OLRC, note 2, chapter 7.

[211] See Thomas G. Anderson, Submission to the LCO re: Division of Pensions on Marriage Breakdown, pp. 9.

[212] See Hovius and Youdan, note 96, p. 488; OLRC, note 9, p. 265.

[213] The legislation of three provinces expressly provides that parties may contract out of the CPP division of credits provisions; they are Alberta (Family Law Act, S.A. 1993, c. F-4.5, 82.2), British Columbia (Family Relations Act, note 94, s. 62) and Saskatchewan (The Family Property Act, note 104, subs. 38(5)). Article 422 of the Civil Code of Québec (note 100) allows a court to order that there not be a partition of earnings registered under the Québec Pension Plan or “similar plans”; the section provides a non-exhaustive list of grounds to which the court may have regard in making such an order, and it has been suggested that, while not expressly mentioned in the section, the fact that the parties have agreed that there should not be a partition would be a ground that a court could consider. See Richard McConomy and Carolle Tremblay, “Québec” in James G. McLeod and Alfred A. Mamo, eds., Matrimonial Property Law in Canada (Thomson Carswell, Toronto, 1980), p. Q-19.

[214] [1989] O.J. No. 1844.

[215] [1990] O.J. No. 3101.

[216] This was recommended by the OLRC, note 2, at p. 267.

[217] Hovius and Youdan, note 96, p. 492.

[218] The LCO notes that in its 1995 Report on Pensions as Family Property: Valuation and Division (note 2), the former OLRC recommended that its proposed pension division-at-source scheme apply to cohabiting opposite-sex and same-sex couples (although it acknowledged that coverage of the latter would have to await then-anticipated amendments to the PBA and the ITA, the spousal definitions of which did not at the time include same-sex couples). However, part of the background to this recommendation was the fact that in an earlier report, the 1993 Report on the Rights and Responsibilities of Cohabitants under the Family Law Act (Ministry of the Attorney General, Toronto), the OLRC had recommended that common law spouses be covered by the family property provisions of the FLA generally. As the instant LCO report is not concerned with family property generally, but only with pensions, we do not think it appropriate to address here the question of whether common law spouses should be covered by Part I of the FLA (although we are recommending that they should be able to access the ISM and DSM settlement mechanisms where they wish to settle their affairs and to resort to pension division in order to do so — see Recommendation 13 in section VI).

[219] This example is a variation of an example provided by the OLRC, note 2, p. 170.

[220] Hovius and Youdan, note 96, p. 478.

[221] OLRC, note 2, pp. 104-106.

[222] The Canadian Institute of Actuaries’ 1993 Standard of Practice for the Computation of the Capitalized Value of Pension Entitlements on Marriage Breakdown for Purposes of Lump Sum Equalization Payments referred only to the termination method and the retirement method.

[223] Consider the example of a pension plan with a factor 90 unreduced early retirement option and a normal retirement date of age 65, and a member who joins the plan at age 30 at about the same time she married and who divorces at age 50. She will achieve factor 90 at age 60, but only because the service credits earned while she was married are counted; without those credits, she would not achieve factor 90 before reaching the normal retirement age in the plan.

[224] See note 209.

[225] One firm of actuaries estimated that in 95% of marriage breakdown cases in which a spouse’s family property included rights under a pension plan, equalization was achieved without dividing the pension: Dilkes, Jeffery & Associates, Inc. Submission to the LCO re: Division of Pensions on Marriage Breakdown, p. 6.

[226] Mary Condon, “Gendering the Pension Promise in Canada: Risk, Financial Markets and Neoliberalism” in Social & Legal Studies 10: 83-103, 85.

[227] With one exception, pension division regimes in Canada that have adopted the ISM approach use commuted value. The exception is under the federal Pension Benefits Division Act [S.C. 1992, c. 46, Sch. II] (PBDA), which applies to employees of the federal government. One might speculate that the sponsor of plans to which the PBDA applies can afford the risks inherent in using a method of valuation more favourable to the non-member spouse than the commuted value approach.

[228] The General regulation under the PBA currently prescribes the types of retirement vehicles that are permitted for transfer purposes.

[229] As was noted above in Section IV, under the heading “Lump Sum Transfer on Termination”.

[230] In some cases, the amount that would otherwise be transferred into one of the four vehicles described above may exceed the amount that is tax-sheltered under the ITA. In such cases, the excess would be paid directly to the non-member spouse in cash.

[231] We note that the OLRC, in recommending that parties have a “benefit split” option, did not think it appropriate to limit its availability to cases in which the member was within ten years of normal retirement date, although it did suggest that the option be seen as a “last resort”, to be utilized only where other settlement approaches were not feasible; see OLRC, note 2, p. 202.

[232] We note that several provinces, including all three DSM provinces, provide for a fee to be paid to the plan administrator in cases of pension division on marriage breakdown. See the Employment Pension Plans Regulation (Alberta Regulation 35/2000, s. 61); the Division of Pensions Regulation (B.C. Reg. 77/95, s. 13); the Pension Benefits Act Regulations (N.L.R. 114/96, s. 28); the Pension Benefits Regulation (N.S. Reg. 352/2008, s. 80); and the Supplementary Pension Plans Act (R.S.Q., c. R-15.1, s. 110.1).

[233] The member’s pension might be subject to an adjustment for age, depending on the terms of the plan. Some plans might provide for an increase where the member retires after normal retirement date, while others might not.

[234] Note 227.

[235] Most of the provinces have a similar 50 per cent rule; see the Employment Pension Plans Act (R.S.A. 2000, c. E-8, s. 63; the Family Relations Act (note 94, s. 75.1); the Pension Benefits Act (S.N.B. 1987, c. P-5.1); the Pension Benefits Act, 1997 (S.N.L.1996, c. P-4.01, s. 47); the Pension Benefits Act (R.S. [Nova Scotia], c. 340, s. 61; the Supplemental Pension Plans Act (note 232, s.110) and the Regulation Respecting Supplemental Pension Plans (R.Q., c. R-15.1, r. 1, s. 49); and the Pension Benefits Act, 1992 (S.S.1992, c. P-6.001, s. 46). In British Columbia and Quebec, a court order may allow the 50 per cent limit to be exceeded. The Quebec 50 per cent rule refers to the value of benefits accrued both during and before the member’s marriage. Interestingly, while the 50 per cent rule in Nova Scotia, like that of most of the provinces, is based only on the pension benefit earned during marriage, under its Matrimonial Property Act (R.S., c. 275) the pre-marital portion of a pension (and not just the portion earned during marriage) is considered to be a matrimonial asset. (In Morash v. Morash (2004), 221 N.S.R. (2d) 115, the Nova Scotia Court of Appeal rejected the view that there was any conflict between the MPA and 50 per cent rule, holding that the MPA was concerned with the question of entitlement to a share in the value of matrimonial property while the rule simply limited the extent to which the entitlement could be satisfied through division of the pension.) The PBDA (note 227, s. 8), which applies to public sector pensions in federal jurisdiction contains a 50 per cent limit; in contrast, the PBSA (note 29, s. 25), which applies to private sector pensions in federal jurisdiction, explicitly permits the entire value of a member’s pension to be assigned to a spouse.

[236] [2003] O. J. No. 2098, 23 R.F.L. (6th) 94 (S.C.J.).

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