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Estate Planning

There is nothing that precludes parties from agreeing, or the court from ordering that a pension payment may continue to a non-member spouse’s estate after that individual’s death.


The parties were married for just over 33 years. The wife was a teacher who paid into a pension. When she retired, she elected a joint pension with 60% survivor benefit. The husband fell ill with ALS and began receiving Ontario disability as his only income. The parties separated the following year. After bringing an application to settle outstanding issues, the husband brought a motion to decide a question of law regarding the division of the “in-pay” pension of the wife at source. The pension administrator determined that if the parties agreed to divide the pension at source, the husband was entitled to receive 48.99% of the monthly payments. The wife did not dispute this calculation, where the parties disagreed was what should happen to the husband’s payment of the pension after he passes away, which due to his condition was quite imminent. The husband believed that the pension should continue to be paid to his estate following his death, the wife disagreed.

As this was the most significant asset the parties owned during marriage, a question of what the husband would have been owed if the pension was equalized was raised. The husband believed that splitting the pension at source and having it continue to be paid to his estate after death was essentially the delivery of an equalization payment which the wife was likely to owe him. The reason he brought a motion on this issue was that if the husband happened to die prior to this issue being resolved, the pension would automatically revert back to the wife. The motion judge relied on the Pension Benefits Act (PBA) which stated that the proportion of the retired member spouse’s pension is to be paid to the “eligible spouse” not the deceased eligible spouse’s estate in his order in favour of the wife. The husband passed away following the motion and the estate trustee appealed.


At the Appeal, the Judge stated that as an issue regarding a clear question of law, it was not enough to simply look to the PBA, but that the court should look to the Family Law Act and relevant Regulations. The Judge further stated that the intersection of the two statutes clearly does not preclude the possibility of pension payments divided at source for family law purposes bring continued to the non- member spouse’s estate. The Judge was not persuaded by the wife’s argument that silence of potential payments to an estate demonstrated the payments cannot continue. Under the Regulation, the only mention of restriction with regard to death was that once the pension member dies, the payments will not continue. In reviewing the Financial Services Commission of Ontario and Pension Administrator’s policy, which are governed by the PBA, allows for the possibility of payments continuing to a former spouses estate. Upon review of the intersection of the above statutes and regulations, the court concluded that there is nothing that precludes the parties from agreeing to, or the court from ordering that a pension payment may continue to a non-member spouse’s estate after that individual’s death. The appeal was therefore allowed.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.