[1] We would note that the project complements a broader move to reform the law relating to pensions. The Ontario Expert Commission on Pensions is currently reviewing a number of issues relating to pensions and is expected to release a final report later this year. However, pension division upon marriage breakdown is not an issue within the Expert Commission’s mandate.

[2] R.S.O. 1990, Chapter F.3.

[3] 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 of an application based on improvident depletion and the day before the date of a spouse’s death.

[4] It should be noted that Part I of the FLA, unlike some other matrimonial property regimes, does not create beneficial interests in property, but rather, a debtor-creditor relationship between the spouses.

[5] Despite the reference to vesting, pension rights that have not yet vested are also considered to be property for purposes of equalization under the FLA; see, for example, Bascello v. Bascello, [1995] O. J. No. 2989, 26 O. R. (3d) 342.

[6] There are two main types of pension plans, defined benefit plans and defined contribution plans. Under a defined benefit pension plan, the member’s pension benefit is determined according to a set formula. Under a defined contribution plan, the member’s benefit will be equal to the contributions made to the plan plus the yield on investment of those contributions.

[7] One expert suggests that a pension in a defined benefit plan is frequently worth two to two-and-one-half times the contributions; see Thomas G. Anderson, “Pensions” in Federation of Law Societies of Canada 2006 National Family Law Program, p. 32.

[8] Variations include using as multiplicands a flat dollar figure or career average earnings rather than a percentage of earnings in some limited period of years immediately prior to retirement.

[9] E. Diane Pask and Cheryl A. Hass suggest that the terms may be used interchangeably in Division of Pensions (Carswell, 1990), p. III-14. However, it would seem that “commuted value” is generally not used in a family law context in Ontario; see Ontario Law Reform Commission, Report of Pensions as Family Property: Valuation and Division (1995), p. 29.

[10] Boston v. Boston, [2001] 2 S.C.R. 413, at para. 32.

[11] R.S.O. 1990, Chapter P.8

[12] Section 56 of the General regulation under the PBA (Regulation 909 of R.R.O. 1990) prescribes a method of valuation for purposes of the “fifty per cent rule” in subsection 51(2) of the PBA, discussed below, but while this can be relevant to the question of how the equalization requirement is to be satisfied once the net family properties of the spouses have been determined, it is not prescribed as a method for determining value for net family property purposes and has generally not been used for such purposes.

[13] See Bascello v. Bascello, note 5; J. B, Patterson, “Confusion Created in Pension Valuation for Family Breakdown Case Law by the Use of the Expressions ‘Termination Method’ and ‘Retirement Method’ (1998-99) 16 C.F.L.Q. 249. Note, however, that the Supreme Court of Canada used the term “termination method” in Best v. Best, [1992] 2 S.C.R. 868, paras. 43 and 44, despite its awareness that the method used in that case did not reflect a pure termination approach.

[14] Best v. Best, note 13, paras. 88-93. In discussing the possibility that the retirement method might be used, 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 occur only at some remote date in the future.

[15] Humphreys v. Humphreys (1987), 7 R.F.L. (3d) 113 (Ont.HC.J.)

[16] This seems to be the point being made by certain judicial authorities and other sources cited in Berend Hovius and Timothy G. Youdan, The Law of Family Property, Carswell, 1991, p. 499 and p. 501.

[17] The member spouse may die without having retired. Pask and Hass (note 9), p. V-9 state that mortality can be ignored for valuation purposes if the pension plan in question provides a death benefit equal to 100 per cent of the commuted value of the pension to which the member is entitled. In that regard, section 48 of the PBA requires a pre-retirement death benefit equal to the commuted value of the pension, but requires the value to be determined as of the termination date; this of course means that it provides 100 per cent of the commuted value only if one is going by the termination method rather than the retirement method.

[18] 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 3.

[19] See James G. McLeod, Annotation of Best v. Best (1999), 49 R.F.L. (4th) 10, at 15. This view also formed part of the basis for the minority dissent in that case.

[20] Note 13, para. 87.

[21] Pask and Hass, note 9, p. VII-7.

[22] There are some exceptions to this; see subsection 67(5) of the PBA.

[23] See section 9 of the FLA.

[24] Note 10.

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

[26] Ontario Law Reform Commission, note 9, p. 37.

[27] “If and when” agreements, unlike orders, do not attract the same objection, as subsection 2(10) of the FLA provides that domestic contracts generally prevail over the FLA requirements.

[28] 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.

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

[30] See note 27.

[31] For a dramatic illustration of this, see Pask and Hass, note 9, 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.

[32] 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, 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).

[33] 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. See note 13, para. 117.

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

[35] Ontario Law Reform Commission, note 9, p. 44. 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.

[36] Ontario Law Reform Commission, note 9, p. 44.

[37] These will, presumably, be agreements or orders where the non-member spouse’s share is determined on the basis of a ratio of present values rather than a time ratio.

[38] 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.

[39] 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. It clearly would be the case where the pension rights have not vested. However, while a former spouse as such is not entitled to a pre-retirement death benefit under section 48 of the PBA, he or she could be designated as a beneficiary if there is no subsequent spouse. (Even if the member spouse remarries, an agreement or order assigning part of the death benefit to the former spouse would seem to be enforceable and binding on the surviving current spouse: Stairs v. Ontario Teachers’ Pension Plan Board, [2004] O.J. No. 331.)

[40] 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.

[41] R.S.C. 1985, Chapter C-8.

[42] See Hovius and Youdan, note 16, p. 488; Ontario Law Reform Commission, note 9, p. 265.

[43] This was recommended by the Ontario Law Reform Commission, note 9, at p. 267.

[44] Hovius and Youdan, note 16, p. 492.

[45] Alberta, Manitoba, New Brunswick, Quebec and Saskatchewan have adopted some form of the ISM.

[46] In theory, it would be possible to include pensions in the FLA equalization scheme under the DSM, but doing so would require valuation of the pension rights on the valuation date, thereby losing one of the primary benefits of the DSM.

[47] British Columbia, Newfoundland and Nova Scotia have adopted some form of the DSM. Note that if the DSM is simply an option for the parties, pensions would not have to be excluded from the FLA equalization regime where the parties did not choose that option.

[48] Anderson, note 7, p. 5. British Columbia has adopted a DSM approach; that province’s Family Relations Act uses the term “limited member” to describe the non-member spouse’s status.

[49] Anderson, note 7, p. 26.

[50] OMERS, note 38, pp. 6 & 8.

[51] Gene C. Colman, G. Edmond Burrows and Penny Hebert, “Pension Reform—Watch Out!” in Money and Family Law, Vol. 20, No. & (July, 2005), p. 4.

[52] Colman, Burrows and Hebert, note 51, pp. 5-6.

[53] See note 46.

[54] Colman, Burrows and Hebert, note 51