“As conceded by Ms. Amorim, the application judge started with the correct legal test. Section 44(1) of the Pension Benefits Act provides that every pension paid to a member who has a spouse is to be paid out on a “joint and survivor pension” basis unless, pursuant to s. 44(4)(b), the member and his or her spouse are living “separate and apart” on the date that the first pension payment is due. (Footnote: The Pension Benefits Act has since been amended and the “living separate and apart” exception to the definition of “spouse” is now found in s. 44(1.1). In determining whether Mr. Carvalho and Ms. Amorim were living “separate and apart” at the relevant time, the application judge turned to the case law under s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He described the following indicia, derived from Greaves v. Greaves (2004), 2004 CanLII 25489 (ON SC), 4 R.F.L. (6th) 1 (Ont. S.C.), at para. 34, as relevant to his determination of whether the parties were living separate and apart:
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.”