If you are in a BC common law relationship also called a Vancouver marriage like relationship your present claim to a BC spouse’s pension is far weaker than if you were married to your spouse who has a private pension plan entitlement. The laws on private pension plan division for BC unmarried persons living in a marriage like relationship are about to change.
The November 2011 Supreme Court of BC unmarried persons and common law relationship trust claim decision of A. Y. v. S. Y. dealt with how pensions contributed to by monthly contributions as part of an employee contract or collective agreement are dealt with in BC common law- also know as BC marriage like relationships. Part 6 of the BC Family Relations Act provides for automatic division of pension contributions made during a marriage and can also divide pre-marriage contributions under certain circumstances. However, the automatic pension division rules don not at present apply to unmarried persons or those in common law or “marriage Like” relationships.
This case follows a number of earlier cases that focus on whether any additional family monies were spent to reinstate or buy additional pension credits or entitlements as opposed to automatic deductions that were made from the employee spouse’s paycheques to fund their pension plan. If additional family monies form the couple’s joint earnings were used to buy pension plan entitlements then a constructive trust claim may succeed if not it is likely to fail.
The new Family Law Act will extend the benefit division entitlement to common law souses’s who have lived together for more than 2 years if they meet the following definition:
Spouses and relationships between spouses
3 (1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
Justice Fitzpatrick relied on an earlier decision that summarized the law in this area and ultimately dismissed the non owning common law spouse’s claim to the pension. I have extracted the key paragraphs for you below:
[68] The Court in Kusleika also rejected the claim to the pension on the basis that no remedy was appropriate in the circumstances:
(42) The plaintiff has not made out a sufficient claim to ground a constructive trust. Rather, any claim for unjust enrichment would only lie on a monetary basis. Despite the fact that the plaintiff’s claim for a constructive trust on the pension is dismissed under the “juristic reason” analysis, it is worthwhile noting that she would fail in any event to establish an entitlement to the remedy of a constructive trust.
(43) Before a constructive trust may be imposed, the claimant must show that she contributed to the acquisition or accumulation of that property. Rogers J. summarized some of the cases on this point in Westergard at paras. 44-47, as follows:
44 The law is clear that before a constructive trust may be imposed with respect to property the claimant must show that she contributed to the acquisition or accumulation of that property. In Peter v. Beblow McLachlin J. considered whether that requirement might be set aside. She said:
Moreover, the notion that one can dispense with a link between the services rendered and the property which is claimed to be subject to the trust is inconsistent with the proprietary nature of the notion of constructive trust.
45 The courts have consistently held that it is a necessary element of a constructive trust claim on a pension that the claimant demonstrates her contribution to the acquisition or accumulation of that pension. So in Wong v. Spencer [1995] B.C.J. No. 2571 B.C.S.C. Romilly J. said:
para 43- Regarding the plaintiff’s claim for constructive trust against the pension, however, I am satisfied, based on the law reviewed above and the facts before me, that she has not succeeded in establishing a claim for constructive trust. It is clear from the evidence that the plaintiff and defendant kept their finances separate. Apart from that the plaintiff is unable to show that she made any contribution towards this pension or the defendant’s ability to contribute to it.
46 In Nemeth v. Timperly (1997), 33 B.C.L.R. (3d) 8 (B.C.S.C.) Koenigsberg J. considered the plaintiff’s claim on the defendant’s RRSP savings, and said:
15 Finally, I must note a further difficulty. Even if I had found a benefit conferred without compensation — using the Everson v. Rich, supra, analysis — I would not have sufficient facts to declare a constructive trust. There is no evidence to suggest a nexus between anything done by the Plaintiff in contributing positively to the Defendant’s life and the accumulation of his pension. Thus, one would be left with entitlement to a monetary damage award. Here, as in Everson v. Rich, one would have to “settle up” the contributions. In my view distinguishing this case from Everson v. Rich however, the contributions by the Defendant to the Plaintiff’s financial situation over the 16 years of cohabitation outweigh those of the Plaintiff to the Defendant. Further the Defendant has no present means of paying an award. Each party’s present personal and financial situation is unfortunate but neither appears to be in any better position than the other.
47 And, in Carmichael v. Douglas (2003), 37 R.F.L. (5th) 259 (B.C.S.C.) where the plaintiff claimed a constructive trust in the defendant’s pension, Ross J. said:
101 I am not satisfied that Ms. Carmichael has established that she made any contribution to Mr. Douglas’s pension or to his ability to contribute to it. Thus there is no enrichment and corresponding deprivation in relation to the pension and no basis for the imposition of a constructive trust, see Wong v. Spencer, [1995] B.C.J. No. 2571 (B.C.S.C.). I dismiss her claim to an interest in his pension.
44 In the circumstances of this case, I find that the plaintiff has not established a sufficient link between her contributions and the accumulation of the defendant’s pension to justify the imposition of a constructive trust. While domestic work may constitute a link for this purpose, the level of such contribution here and the fact that the plaintiff had nothing to do with the acquisition or accumulation of the pension lead to the conclusion that there is no requisite link to establish a constructive trust in favour of the plaintiff.
69 In my view, central to the issue in this case is the fact that the contributions made to the pension by S.Y. were mandatory and were automatically taken from his paycheque. There was no option as to whether or not those amounts would be paid or not. Accordingly, I do not see that there is any basis upon which to assert that A.K. contributed to or acted in any way to her detriment in relation to the pension. There is no substantial and direct link between A.K.’s actions and the pension.
70 Further, similar to the finding in Domisiewicz, I do not see that S.Y. was enriched by reason of any actions of A.K. relating to the pension. There was no benefit conferred on S.Y. in the sense of affecting his ability to work and earn credits towards his pension. Put another way, there is no suggestion that, but for A.K.’s efforts at home, S.Y. would have been unable to continue in his employment with Cariboo and accrue the pension benefits.
71 This situation is to be contrasted from others where there are discretionary amounts available to the family that are used to supplement retirement funds to the detriment of the family, or where efforts of the non-contributing spouse freed up time or money for the other spouse to build up retirement benefits. The latter situation was considered in Peter where the Court found that the efforts of the plaintiff “saved the respondent large sums of money” which he was able to use to “pay off the mortgage and to accumulate family assets”: Peter at 982.
72 Another example is found in Kerr (actually, the Vanasse appeal, at paras. 138, 154-157). There, the Court agreed with the finding that Ms. Vanasse and Mr. Seguin had been engaged in a joint family venture and that there was a clear link between Ms. Vanasse’s contributions as a homemaker and Mr. Seguin’s accumulation of wealth. Ms. Vanasse’s contributions allowed Mr. Seguin to spend long hours building up value in a company owned by Mr. Seguin which both parties expected to enjoy in their retirement.
73 Similarly, in Brundage v. Campbell (1992), 73 B.C.L.R. (2d) 362, 20 B.C.A.C. 90, the Court addressed a claim by Ms. Brundage in respect of an RRSP accumulated during the course of the relationship. In that case, monies were saved at the expense of the relationship. At 375, the Court noted that monies that would otherwise have been used for living expenses were put into the RRSP and that those savings were intended to be used during their retirement. The couple had lived frugally and, in those circumstances, the Court found that enrichment had been shown and that Ms. Brundage would be correspondingly deprived.
74 Leaving aside the enrichment/deprivation analysis, I agree with the conclusion in Kusleika that, in any event, there is no basis upon which any remedy could be established. Given that the contributions were mandatory, it cannot be said that the actions of A.K. had anything to do with the accumulation of S.Y.’s pension entitlements. Accordingly, there is no requisite substantial and direct link to establish a proprietary remedy based on a constructive trust.
75 There were of course many indirect contributions – including her assistance in S.Y.’s studying for his high school equivalency (which was later used to obtain his steam ticket for the power engineering job with Cariboo) and asking him some questions in his studying of the power engineering levels. She also made his lunches for work. However, I consider those contributions to be so insubstantial and minor so as not to justify any relief in respect of the pension.
76 A.K. does not, in any event, seek a monetary remedy in respect of S.Y.’s pension, only a half interest in benefits accrued during their relationship. Further, even if a monetary remedy was justified given any indirect contributions, there was no evidence of the value of S.Y.’s pension which would support such a remedy. I would also note that S.Y. has no assets of any substantial value over and above his pension with which to pay any monetary remedy.
77 Accordingly, A.K.’s claim for a constructive trust with respect to S.Y.’s pension is dismissed.
If you are in a marriage like relationship and claiming or opposing a pension division claim you should call us now to ensure you are fully aware of your rights on the pension division and other support and property division issues.
