“Spouses” Under Pension Legislation
By Jean-Pierre A. Laporte
An Elastic Definition…
• “Spouse” in the Income Tax Act modified by the
Rosenberg decision on April 23, 1998
• “Spouse” in the Pension Benefits Act modified by
the OPSEU decision on December 8, 1998
An Elastic Definition … (cont’d)
• “Spouse” in the Family Law Act modified by the
M v H decision on May 20, 1999 but only for Part
III of the Act dealing with support obligations
… and Its Legislative Response
• Bill 5 in Ontario, now S.O.1999 c.6 called
Amendments Because of the Supreme Court
of Canada Decision in M. v. H. Act, 1999
• Bill C-23 for Canada, now S.C. 2000, c.12 called
Modernization of Benefits and Obligations Act
Separate but Equal
• Creation of a ‘separate but equal’ parallel system
for heterosexual spouses on the one hand and
same-sex partners on the other.
• Separate but equal system will not go
unchallenged, expect more litigation.
Some of the Key Rights Enjoyed by
‘Spouses and Same-Sex Partners’
• Rights to certain info regarding the pension plan
• Pre-retirement death benefits
• Survivor pension
• Portion of pension upon relationship breakdown
• Garnishment of pension - support orders
Some Rights Are Reserved for
Heterosexual Married Spouses
• No 3-year waiting period to qualify as a spouse,
but delay imposed on common law spouses and
same-sex partners.
• Note: Income Tax Act definition of same sex
partner only imposes a 1 year waiting period.
Exclusion of Same-Sex Partners from
Pension Benefits
• To qualify for a survivor pension under the PBA
one’s spouse or same-sex partner must fall within
the statutory definitions.
No Pension Entitlement --Illustration of s.44 PBA
2000
2001
Same-sex partner begins
cohabitation with member
of pension plan
2002
2003
Pensioner retires
and first installment
of pension due
Pensioner dies
and partner is
still ineligible
Some Other Considerations for
Administrators
• How to satisfy oneself that the claimant does not
fit within the definition of spouse or same-sex
partner? [Are Administrators well equipped to
investigate the private lives of members?]
• Does my Pension Plan need to be amended to
reflect the new law? And if so, which date should
I use? [Can one operate outside of the terms of the
plan to comply with case law without amending
the plan formally?]
Some Other Considerations for
Administrators (cont’d)
• Should I notify members that their “spouses” or
“partners” may have benefits under the plan?
[Potential for denial of rights]
Conclusion
• Same-sex issues are a minefield ripe for litigation
and may catch the unsuspecting Administrator
off-guard.