“The wife wishes to satisfy a small portion of the EP she owes the husband by way of a direct rollover from her pension into a LIRA or LIF in the name of the husband to the extent allowed by her pension plan administrator in the sum of $8,069.42. The husband did not oppose this request.
Pursuant to s. 10.1 of the FLA,
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(3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.
(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:
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- The nature of the assets available to each spouse at the time of the hearing.
- The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
- The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
- Any contingent tax liabilities in respect of the lump sum that would be transferred.
- The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.
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As can be seen, even before the legislation was changed, the court was empowered to transfer property from one spouse to the other in order to satisfy an EP obligation. However, courts could seldom transfer pensions without the consent of the parties because of various statutes governing those pensions. Now s. 10.1 of the FLA has been enacted in order to overcome that problem. That does not mean, however, that a transfer of a lump sum will always be granted. In fact, the court has discretion and should consider the matters outlined in subsection (4) together with “such other matters as the court considers appropriate” : see VanderWal v. VanderWal, 2015 ONSC 384, para. 9.
There is not presumption of statutory onus that an EP will be made by a transfer of a lump sum out of a pension plan. Each case depends on its own facts.”