Case information

Pensions — Family law — Division of pension payments for family law purposes — Lower courts disagreeing on whether where retired member spouse’s pension payments are divided at source for family law purposes, parties can agree (or can a court order or can an arbitrator award) that payment sharing continues to non member spouse’s estate for balance of retired member spouse’s life — Whether family law overrides both pension plan terms and pension legislation to mandate continuing pension payments to estate of non member spouse — Whether law requires “in pay” pensions of older separating, likely female spouses, to be treated identically to pensions not yet “in pay” for matrimonial division of property purposes, even if the net result is to leave the female pension member spouse living a minimalist existence on half a pension even after death of male former spouse — Pension Benefits Act, R.S.O. 1990, c. P.8 — Family Law Act, R.S.O. 1990, c. F.3 — Family Law Matters, O. Reg. 287/11.

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The parties separated and a motion was brought by the husband, respondent, Mr. Meloche to decide a question of law relating specifically to the division of his wife, the applicant, Ms. Meloche’s pension payments and the treatment of a pension within the property division scheme upon a marriage breakdown. At issue here is an “in pay” pension, which means that payment of the first instalment of the retired member’s pension was due on or before the family law valuation date.

Mr. Meloche was unable to work and suffered from a degenerative disease and his life expectancy was reduced. The parties disagreed on how the legal issue should be decided: Whether the court can and/or should make an order directing the Ontario Teachers’ Pension Plan to pay to the estate of Mr. Meloche his portion of his wife’s monthly pension benefit for the life of his wife if Mr. Meloche predeceases his wife?

The Superior Court found that the Ontario Teachers’ Pension cannot be directed to pay to the estate of Mr. Meloche his portion of his wife’s monthly pension benefit for the life of his wife if Mr. Meloche predeceases his wife.

The Court of Appeal allowed the appeal and concluded that there was nothing that precludes pension payments divided at source from continuing to the estate of a non-member spouse during the life of the member spouse, in the event that the non member spouse predeceases the member spouse.