“Section 44(1) of the Act provides that every person who has a spouse on the date of the payment of the first installment of the pension shall be a joint and survivor pension. The Act provides as follows:
s. 44(1) Every pension paid under a pension plan to a retired member who has a spouse, or same sex partner on the date that the payment of the first installment of the pension is due shall be a joint and survivor pension.
[…]
s. 44(4) Subsection (1) to (3) do not apply:
(a) In respect to a pension benefit if payment of the pension was commenced before the 1st day of January 1988; or
(b) in respect to a former member who is living separate and apart from his or her spouse or same sex partner on the date that payment of the first installment of the pension is due.
The term “living separate and apart” is not defined in the Act. The phrase is contained in section 8 of the Divorce Act, R.S. 1985 c. 3 (2nd Supp.). Cases that considered the phrase in the context of the Divorce Act, are of assistance in determining whether the test is met in this case.
Some of the relevant criteria to determine if the parties are “living separate and apart” include:
a. Physical separation, however, this is not the deciding factor as spouses may remain together for economic reasons;
b. A withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the marital relationship;
c. the absence of sexual relations however this is not a conclusive factor;
d. discussions of family problems and communications between the spouses;
e. presence or absence of joint social activities; and
f. the true intent of a spouse as opposed to a spouse’s stated intent: Greaves v. Greaves, 2004 CanLII 25489 (ONSC), at para. 34.”