“This appeal concerns the division of pension payments for family law purposes. The central issue on appeal is this:
Where a retired member spouse’s pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse’s estate for the balance of the retired member spouse’s life?
On a motion to decide a question of law under Rule 16(12)(a) of the Family Law Rules, O. Reg. 114/99 (“FLR”), the motion judge answered this question in the negative. He concluded that the Pension Benefits Act, R.S.O. 1990, c. P.8 (“PBA”) specifically precludes a deceased non-member spouse’s share of a retired member’s pension payments from continuing to the non-member’s estate after the non-member’s death. In other words, the motion judge concluded that the death of the non-member spouse necessarily results in their share of the pension payment reverting back to the member spouse.
Respectfully, I disagree. There is nothing in the PBA, the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), or the Family Law Matters, O. Reg. 287/11 (“Regulation”) (one of the regulations under the PBA) that precludes the parties from agreeing to, a court from ordering, or an arbitrator from awarding a continuation of shared pension payments to the deceased non-member’s estate for the balance of the member spouse’s life. Indeed, when these provisions are read together as a cohesive unit, they leave open the possibility of proceeding in exactly this way.”