Many BC family law clients who separate or divorce after lengthy marriages have employment pensions. Thes BC pensions may be defined benefit pensions or defined contribution pensions. These BC family pensions are often more valuable than all of the other assets of both spouses combined and we are shocked to see how often mistakes are made by spouses who fail to protect their financial future by getting their fair pension entitlement upon relationship breakdown.
Don’t Make A Mistake On BC Family Law Act Pension Division
All to often we see people foolishly waive claims to pension benefits, forget about BC pension survivorship rights, or worse still erroneously rely on contribution statement values to decide what the BC family pension is worth.
BC Family Law Act pension division cases require a skilled lawyer familiar with the pension provisions of our BC family Law Act legislation and our BC and Federal pension division legislation. Part 6 of the Family Law Act explains how BC family law pension division now works in BC.
Every BC Family Law Act Pension Division Case Is Unique
Every family case is different and it only makes sense that you obtain legal advice concerning pensions which in long marriages can be worth over $1,000,000. The seasoned lawyers at MacLean Law routinely protect our clients’ BC pension rights and we can protect yours too.
In the recent BC Court of Appeal decision of Tarr v Tarr the BC Appeal Court allowed a BC Family Law Act pension division appeal on the issue of a poorly worded separation agreement that was found to have waived entitlement to BC pension survivorship benefits by the trial court. The Appeal court reversed the decision and awarded the survivorship benefits to the wife saying pension legislation has specific rules to waive claims to pensions. The Court concluded these rules were not followed nor was a vaguely worded separation agreement sufficient to waive the wife’s claim to these valuable pension survivorship rights.
The official court summary states:
The defendant, Ms. Tarr, was the named beneficiary of the survivorship interest in Mr. Tarr’s pension at the time of the latter’s death. In 2002, Mr. Tarr retired and elected to name Ms. Tarr his beneficiary under his 100% joint life pension plan. The Tarrs subsequently signed a Separation Agreement in 2007 wherein they affirmed that each would retain “for his or her own use absolutely, free of any claim by the other… pension and pension rights”. The plaintiff, as executor for Mr. Tarr’s Estate, sought and received a declaration in the BC Supreme Court that survivor benefits paid to the defendant Ms. Tarr were to be held in trust for the Estate, on the basis that Ms. Tarr’s interest in those benefits had been waived by the Separation Agreement. Ms. Tarr appealed the order.
HELD: The appeal is allowed.
Both the BC Family Relations Act and Pension Benefits Standards Act (‘PBSA’) provide protection for the survivorship interest of a spouse in a plan member’s pension. The terms of the PBSA confirm that upon pension commencement, the survivorship interest in a member’s pension becomes irrevocably vested in the spouse. Thus, as of the date of pension commencement, the spouse has a vested right to survivor benefits. In order to effectively ‘waive’ such a right in a separation agreement, the language used must be unequivocal in recognition of the “super-priority” conferred by the legislation. Far from providing an effective waiver in this case, the Separation Agreement served to confirm the pension rights owned by each party, including Ms. Tarr’s right to the survivorship interest at issue.
BC Family Law Pension Division Is Complex
The following extracts from the decision show how technical BC Family Law Pension Division cases can be and why you need skilled legal representation to protect yourself in the later years of life.
[68] The accrual of pension benefits is usually a significant matrimonial asset, and the entitlement to a survivorship benefit can often be critically important to the designated recipient. As the authors of the 2013 BCLI Report noted:
As can be expected, cases concerning this issue involve a detailed consideration of what was intended under the agreement or court order. The survivor benefits usually constitute an extremely valuable asset. So it is important that a former spouse not accidentally waive entitlement to this benefit. [At 80.]
[69] It is clear the Legislature has consistently intended to protect spousal interests in pensions and, at least in the context of a waiver of those rights under the Pension Benefit Standards Act, intended that a waiver could only be effected in prescribed form and within a prescribed time.
Call us toll free at 1-877-602-9900 across BC if you have concerns over BC Family Law Act Pension Division entitlements and valuation.
