“It is appropriate for the court to rely on hindsight evidence, but only in certain circumstances.
In Best v. Best, 1997 CanLII 576 (ON CA), [1997] O.J. No. 4007 (Ont. C.A.), the court grappled with the evaluation of a party’s pension which depended on when that party retired. The husband had not retired as of the date of trial and the trial decision. The court stated that post valuation date facts can sometimes be relevant in determining such things as a retirement date assumption. If subsequent events could reasonably be contemplated on the valuation date, these events may be relevant since the issue to be determined is the probable age of retirement as contemplated by the pension plan holder on the date of valuation. Facts that were unknown to, or not within the contemplation of the pension holder on the valuation date are not relevant: Best at paras. 20-21. Given that the eventual retirement age was neither known nor contemplated at the time of the trial, hindsight evidence was not permitted.
At the SCC, this finding was upheld with respect to the use of hindsight evidence, but the SCC opined that a different result may have prevailed had the parties chosen a different method of pension valuation: 1999 CanLII 700 (SCC), [1999] S.C.J. No. 40 (QL) at paras. 104-105.
This limited use of hindsight evidence was further supported in MB v. SBB, 2018 ONSC 4893. In that case, McGee J. reviewed the caselaw and concluded that the court is generally reluctant to rely on hindsight evidence unless a subsequent change was reasonably foreseeable. She states at para. 302:
One is to rely exclusively on information available at the time of valuation (whether date of marriage or date of separation), but that information may include realistic outcomes of future events already in the process of unfolding.
Based on the foregoing, hindsight evidence cannot be used to establish an actual value on the date of separation unless there are facts that are known or within the contemplation of the party on the date of separation, which facts are born out by future events.”