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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 34 - Evidence (Bill C-37)


OTTAWA, Tuesday, October 6, 1998

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 12:09 p.m. to give consideration to Bill C-37, to amend the Judges Act and to make consequential amendments to other Acts.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Ladies and gentlemen, we have before us Professor Jamie Cameron of Osgoode Hall Law School.

Professor Cameron, please proceed.

Professor Jamie Cameron, Osgoode Hall Law School: What I would like to do is take a couple of minutes to put forward a point of view about an aspect of this legislation. I will then try to answer any questions you may have.

My involvement in issues pertaining to Bill C-37 has been both limited and ad hoc. It has been limited to the question of benefits for the surviving spouse; it has been ad hoc in the sense that I certainly do not come here today and put myself forward as an expert on either family law or pensions. I should say by way of confession that I am not an expert on those subjects and fields.

I am here, though, because there may be a constitutional issue about some of the provisions dealing with entitlements for the surviving spouse. What I would like to do is explain quite briefly what that issue is and then turn the floor over to questions.

Another point by way of preliminary is that I am really not concerned with the mechanics of Bill C-37. I know you have had witnesses coming before you and you have danced your way through some confusing hypotheticals. I think we are all aware that Bill C-37 creates something of a hierarchy of claims between surviving spouses, but I am not here to debate the fairness of that hierarchy. It would really be outside the purview of my expertise.

For me, the question is fairly straightforward and fairly limited: Does the federal government have any constitutional business delving into matters of family law and matrimonial property by way of a pension scheme? My concern is the definition of "surviving spouse" and some of the entitlements that flow from that definition. To elaborate a tiny bit, perhaps I could set out three propositions that I consider as fairly uncontroversial.

The first is that there is no question that the federal government has jurisdiction to establish pensions for section 96 judges. That is not really in dispute. That is the first proposition.

The second proposition is that the provinces likewise have jurisdiction but their jurisdiction is over matters relating to matrimonial property and the division of family assets. Once again, I do not regard that as a particularly controversial statement or proposition.

The third proposition is that pensions are matrimonial property for purposes of family law and the division of assets.

Those three propositions, each of which I regard as fairly well accepted, lead directly to the question, in my mind, anyway, whether the federal government has the jurisdiction to legislate the division of family assets through its definition of "surviving spouse" and through the entitlements that are created later in the legislation pursuant to that definition of "surviving spouse."

My doubt or my hesitation, my difficulty, with this aspect of Bill C-37 is that it takes property that ordinarily would be divided or regulated or governed by property law pursuant to provincial family law legislation and places it under federal authority. That is my concern about this legislation.

I am going to conclude by adding two brief comments or submissions. I call one of them my strong submission and the other, the second, my weak submission.

My strong submission is that the provisions of Bill C-37 that define "surviving spouse" and then create certain entitlements that flow from that are, in my mind, gratuitous and unnecessary because these issues are dealt with by provincial family law. I therefore regard the definition of "surviving spouse" as being constitutionally suspect or vulnerable.

I can be even more frank about my concern: I am really wondering whether Parliament can create a definition of a common-law spouse and then put in place what is essentially a family property law through its jurisdiction over pensions. I am just not convinced in my own mind that the jurisdiction to establish pensions for judges includes an expanded authority over the consequences of those entitlements by way of survivorship and death benefits, and so on. You will probably have questions for me on my strong submission.

My weaker submission is that even if the federal government can legislate over matrimonial property as an aspect or an incidence of its pension jurisdiction, I wonder whether Parliament should be entering the field and participating in all the various schemes we have for the division of family assets. My view is that it would be preferable for Parliament to defer these questions to provincial jurisdiction. I would regard it as a common-sense point of view -- that is, if a judge lives in B.C., that judge, he or she, should be subject to British Columbia's regime for the division of family property.

Under the proposed federal scheme, for example, a common-law spouse of a judge living in Ontario would become entitled, under the proposed federal Judges Act, to certain entitlements after only one year but would have to wait three years to claim other entitlements under the provincial legislation. The end result is a confusing patchwork of incoherent regulations governing the status of common-law spouses.

I am not myself convinced -- and here this is more opinion than constitutional opinion -- that family law benefits should be governed by the happenstance of whether a person is on the federal payroll or is just an ordinary, regular citizen, earning a living through other means.

To conclude, this question of how we define surviving spouse in Bill C-37 may not seem like an issue of the greatest cosmic importance. However, as many of you are well aware, the reality is that, for many, the pension may be a couple's fundamental asset, one of the linchpins of their family property. I am concerned about overreaching on the part of the federal government. I am concerned about the degree to which the federal government, through the mechanism of pension legislation, is creeping into provincial family law. That is why I am here to talk to you today.

Senator Beaudoin: I have two concerns with Bill C-37: The first relates to provincial family law; the second relates to the proposed commission, whether it will affect the independence of the judiciary. I will restrict myself to the first concern.

There is no doubt that, under section 100 of the Constitution Act, Parliament may legislate in respect to judges' pensions. It is a direct, legislative competence.

There is such a thing as provincial family law, and I agree with that. For example, in Quebec, many sections of the civil code deal with the contract of marriage, with family property, and perhaps the dividing line is hard to see.

If I understand your presentation, you are saying that the part of Bill C-37 dealing with pensions is encroaching on that part of family law that is provincial. I have not yet made up my mind on that. There may be a point there.

Constitutionally, we have a very complex situation. Marriage and divorce are under federal jurisdiction. The contract of marriage is provincial. The civil effects of marriage are provincial. As it concerns family law, the only thing that worries me is that the courts have applied the ancillary power to marriage and divorce. There is no doubt that the federal authority may legislate in respect of marriage and divorce.

You seem to be saying that, in this proposed legislation, with respect to the surviving spouse, Parliament is encroaching on provincial family law, encroaching on property and civil rights. My first inclination is to say that they are not going too far because there is a direct power under section 100. In addition, the federal authority has such a thing as ancillary power. Why do you say that there is an encroachment on provincial family law?

Ms Cameron: Certainly, I agree with you as to section 100 of the Constitution Act, that it clearly grants jurisdiction to the federal government to provide for the salaries, allowances, and pensions of the judges. What I would say there, and I would say the same thing about section 91.26, "Marriage and Divorce," is that section 100 says "Pensions'. It does not say "pensions and survivors benefits," as does section 94A.

Senator Beaudoin: That is right, it does not say that. Do you think it is invading a provincial field?

Ms Cameron: Yes, I do. Section 91.26 says "Marriage and Divorce"; it does not say "marriage and divorce and matrimonial property." As I understand section 91.26, it deals with various aspects of the status of the marital relationship. It addresses the status of the marital relationship -- what is a marriage, how do you get divorced, what are the regulations governing divorce, what is the status of offspring of the marriage, what is the law that relates to custody and support obligations, and so on.

To my mind, section 91.26 deals with the status aspects of the marital relationship and not the matrimonial property, the division of family assets, which, in my understanding of sections 91 and 92, belongs to the provinces under 92.13.

If I could add one further comment, it is to say that you are right to raise this issue of the ancillary authority of Parliament in exercising its jurisdiction to establish pensions. When we look at Bill C-37 and its definition of "surviving spouse" and the entitlements that flow from it, we have to ask the question: Is this pension law? To use a favourite expression of constitutional law professors: Is this in pith and substance a pension law with some ancillary and incidental effects on matrimonial property? If your answer to that is "yes," then you regard it as valid federal legislation.

However, if you put the question slightly differently and come up with a different answer, then you see it as an encroachment. You have to also ask the question: Is this legislation a pension law but with aspects to it that are not necessarily incidental to the pension scheme and which, in pith and substance, are really in relation to matrimonial law and family law rather than in relation to pensions?

I have probably put that in a convoluted way. The question that needs to be confronted here is whether Parliament is entitled to add on all these dispositions and entitlements for survivors and death benefits, and so on, as an aspect of its pension jurisdiction.

Senator Beaudoin: Remember then when the federal authority legislated on the Divorce Act, they legislated also on alimony and the guardianship of children. Prior to that, it was a provincial field. The federal authority intruded in that field by its ancillary power. Could they now say that they have the power to legislate in respect of the pension, that they can go so far as saying that they legislate in respect of the surviving spouse? I do not have the answer. I think that it may be challenged one day. In all likelihood, the Supreme Court would determine that it goes too far, but I am not sure.

Senator Cools: I do not think so. I think the Supreme Court will agree.

Senator Beaudoin: The Supreme Court will agree with the bill as it is?

Senator Cools: I think so.

Senator Beaudoin: My first reaction is I think so, too, but I would like Professor Cameron's opinion. She has stated very clearly why there is a doubt.

Ms Cameron: I do not regard this as merely ancillary or incidental to the pension jurisdiction. I am concerned about overreaching on the part of the government. I am concerned about the creep into areas of jurisdiction that belong exclusively to the provinces. One of those areas that do belong exclusively to the provinces is matrimonial property and family law. To the extent that Parliament has entered that field here with this legislation and has done so in a way that creates adverse consequences for those who are entitled under provincial law, I think there is a constitutional problem.

Senator Nolin: We are dealing with the proposed changes to section 44 of the Judges Act, changes that relate to pensions and surviving spouses. Section 44 is not a new section; it has been there for many years. Are you aware of any decision of any tribunal supporting what you are saying, what you call your strong position?

Ms Cameron: I am not aware of any decision in relation to the Judges Act and the question of judicial pensions, but a Supreme Court of Canada decision in Clarke v. Clarke confirms both that pensions are matrimonial property and that matrimonial property is within the jurisdiction of the provinces. That decision dealt with a federal pension scheme and a claim brought under provincial matrimonial law.

Basically, the court in that case indicated that pensions are matrimonial property and therefore are subject to division according to provincial law, and that matrimonial property is a matter of provincial jurisdiction. The court was able to reconcile the federal pension provisions with the entitlements that were created under provincial family law. Therefore, there was no need to pick and choose between the federal law and the provincial law. The court was able to read the two together and, in that case, give the woman the entitlement she was seeking by way of access to pension benefits under provincial law.

Senator Nolin: What federal legislation did that case refer to?

Ms Cameron: It was the Canadian Forces Superannuation Act. The difficulty there was that the federal statute had a prohibition against alienation of a pension -- "alienation" being a common law expression for "sold." The question was: If the wife of the gentleman who was entitled to the pension were to receive a share of that pension under provincial family law, would that be in conflict with the prohibition in the Superannuation Act against the alienation of a pension? It is complicated, but that is the gist of what was at stake in the Clarke case. It was 1990 Supreme Court of Canada decision.

Senator Nolin: The right of Parliament to introduce such a scheme in a federal statute was seriously questioned in Clarke v. Clarke.

Ms Cameron: No, actually, I do not think that would be a fair interpretation of the case. That question was on the flip side of the question we are looking at today. The question in Clarke was whether the provincial matrimonial property provisions could take force vis-à-vis the federal pension scheme because of this prohibition against the alienation of the pension.

Senator Nolin: The question was one of whether provincial and federal legislation could co-exist.

Ms Cameron: We are sort of looking at it from the opposite direction. The federal government's legislation was not in issue in the Clarke case. It was whether the woman could be entitled under the provincial legislation, given the restriction in the federal legislation, so it is not perfectly on point with the issue here today.

I raise the case because it did confirm both that pensions are property for purposes of family law and the division of assets and that matrimonial property is within the jurisdiction of the provinces. I believe that those two aspects of the case support my concerns about this pension scheme.

Senator Nolin: Let us take an example where there is the practical application of Clarke. We are in court and a surviving spouse wants access to a proposed section 44 pension. Give me a scenario in which Clarke can be used effectively by a surviving person to have access to a pension under proposed section 44. Just to complicate this scenario a bit more, that person would not be able to have access to it because of Bill C-37. Give us a scenario in which Clarke can be applied.

Ms Cameron: I would use Clarke as authority for the proposition that the federal government does not have the jurisdiction to regulate or deal with matrimonial property. I must be candid that there is nowhere in this case that the court flat out says that, because that was not the issue in the Clarke case. At this stage, given that there is not a lot of jurisprudence on this precise point, although we may see some as a result of federal legislation, we have to argue by way of extrapolation.

I go back to what I said to Senator Beaudoin; I apologize for repeating myself. The issue here is whether we regard the package under Bill C-37 as pension legislation or whether it is more accurate to view the provisions dealing with the surviving spouse as an unconstitutional add-on. They are unconstitutional because they deal with matrimonial property rather than with pensions per se. I will call them the "add-ons," if you permit me, just so that we all know what we are talking about. I would make the argument that the add-ons do not necessarily have anything to do with the pension. In other words, the definition of "surviving spouse" and the statutory disposition of benefits by way of survivors' benefits and death benefits do not need to be addressed in federal legislation because it is dealt with in provincial legislation. I do not really see it as being a pension issue. It is a family law issue.

Senator Nolin: I would like to pursue that line. I will put a scenario on the table.

In my scenario, the judge is divorced from the first person. That person is not entitled to any pension. We have no argument with that. No problem arises from that construct.

Take the hypothetical of a judge separated from one person and now living for a period of time with another person. The judge dies. Bill C-37 is in force, so those add-ons are there in the Judges Act. You are telling us that you could use the Supreme Court decision in Clarke to say to Parliament that it was not in their power to decide such a pattern, and you think that you could win.

Ms Cameron: I do not want to inflate the importance of the Clarke case because it is not 100 per cent on point.

Senator Nolin: It is probably the only case, which is the reason I referring to it.

Ms Cameron: I would make other arguments, too. One that I have already referred to, section 100, for example, refers to pensions. It does not say anything about survivors' benefits. Section 94A. makes explicit reference to survivors' benefits and disability benefits. Therefore, there is some support for what I will call my position, because I do not view myself as a partisan. I am simply giving my constitutional opinion.

Senator Nolin: You are an expert.

Ms Cameron: It is a matter of how you read section 100 against section 94A; how you read 94.26 against 92.13. It is how you characterize the legislation, which is the methodology of the constitutional law analysts. They would ask the question: Is this pension legislation or is it family law legislation?

I do not have any difficulty telling you that there would be differences of opinion among constitutional scholars. There would be differences of opinion among judges. Some might take the view that this is pension legislation through and through and that there is no interference with family law and matrimonial property under provincial law. Others would take the view that it is problematic for Parliament to extend the scope of pension legislation to all these dispositions and entitlements that flow through after the pension has vested and reached down to a chain of dependants and survivors.

Senator Joyal: I would like to follow up on some of the points that the expert witness has been raising in relation to family law, especially in the context of the definition of "spouse."

As you stated, and as we all realize, what the bill adds to the present state of legislation, the present Judges Act, is the definition of "surviving spouse." You have outlined very clearly the conflict between the period of time Bill C-37 proposes as a key element of the definition -- which is one year of living common law -- and the situation that prevails in various provinces, where the length of time varies from two to three years.

There is another conflict with the provinces, one that you have not mentioned, and that is the way spouse is defined as the other person that makes the couple a unit or a "family unit." As you well know, British Columbia adopted legislation in relation to the Pension Statute Amendment Act, which was proclaimed on June 30, 1998 that defines spouse in a way that is contrary to the definition proposed by the bill that is presently before us. I quote:

... "spouse" means, in relation to another person,

(a) if there is no person to whom paragraph (b) or (c) applies; a person who at the relevant time was married to that other person,

(b) a person who lived with that other person as husband and wife for the 2 year period immediately preceding the relevant time, or

So we have a two-year period there. It goes on to say:

(c) Each person of the same gender who lived in a marriage-like relationship with that other person for the 2 year period immediately preceding the relevant time...

This definition of "spouse" intrudes into family law. As you are probably aware, in a statement made in the legislative assembly on June 18, the Quebec government announced that it intends to legislate to the same effect that has been adopted in British Columbia, so far as the definition of spouse is concerned.

In other words, in terms of existing legislation regarding judges' pensions -- which can be found in the Judges Act -- this bill intervenes not only in terms of property but also in terms of family law. This is another important aspect of the preoccupation that we share around this table. What are the effects of Bill C-37 on family law? Do you think that the definition of "surviving spouse" is not an even more forceful intrusion into family law than the legislation over what you call matrimonial property?

To my mind, it is as important to legislate individuals as it is to legislate the goods that belong to a family unit. First of all, let us deal with the person and then let us deal with the goods. Because Bill C-37 opens a discussion about who has the responsibility of defining the family unit or the beneficiaries of that system, it is important to define to whom the proceeds of the pension belong.

Ms Cameron: Yes, I agree with you. What I would say is that to the extent that Bill C-37 creates a definition of common-law spouse or of spouse for purposes of property entitlements as a matter of family law, then it is, to my mind anyway, an intrusion on provincial jurisdiction and an intrusion on the jurisdiction of the provinces to determine what the prerequisites and requirements and conditions should be for the division of family assets.

This is a complicated area, as all of you know. There are ten provinces, each with its own family law regime. There is divided jurisdiction between the federal government and the provinces on aspects relating to marriage, divorce, family law, et cetera. What I think would be problematic is to see a kind of a turf war between the federal government and the provinces over who gets to define what a common-law spouse is. I do not know what the explanation for this is, but I am somewhat baffled that Bill C-37 did not define "surviving spouse" in terms of whatever is the applicable provincial definition.

For example, if I am a judge sitting in B.C., then the definition of "surviving spouse" for me is whatever is on the books in B.C. By the same token, if I am judge sitting in Ontario, my spouse's rights will be determined by what Ontario common law says a common-law spouse is in Ontario. I think it is a three-year period in Ontario.

This may well have constitutional implications. I am certainly not convinced that it is a wise thing for the federal government to create its own definition of "surviving spouse," to create entitlements for judges pursuant to that definition, and then for that definition to conflict with the understanding of what common-law spouse means in various provincial jurisdictions.

Another problem area is this: Residents of Ontario are government by Ontario's family law regime, except for federal judges. Judges are equivalent to an enclave. Their obligations and entitlements are dealt with differently under Bill C-37, and so on. That thinking can be extended right through the various pension schemes that the federal government is creating and has created.

Even though it might seem like a very small issue when you first take a look at the definition of "surviving spouse" and what entitlements flow from it, it actually can grow into a fairly large and prickly issue of jurisdiction and constitutionality.

Senator Joyal: In other words, to put it very clearly, in your mind, the definition of "spouse" is a matter of family law pertaining to provincial jurisdiction?

Ms Cameron: For your purposes of dividing family property, yes. Matrimonial property being a matter of provincial jurisdiction, the provinces have the constitutional authority to define common-law spouse in terms of a period of time -- be it a one-year period, a three-year period -- or not recognize a common-law spouse.

The Chairman: Professor Cameron, would you have any suggestions, as it relates to clause 1 of Bill C-37, as to how "surviving spouse" should be defined in order not to be in conflict with the various provincial jurisdictions?

Ms Cameron: I was afraid I might be asked that question.

Senator Nolin: I think you already gave us the answer, which was no definition.

Ms Cameron: I would say "surviving spouse" in relation to a judge is in accordance with the applicable provincial law -- some variation on the language that we see in subsection 9. Just to be clear, "surviving spouse," as defined in the Judges Act, is defined by whatever province a judge is resident in as a spouse.

I was going to say that the only judges who are truly federal and without a province of attachment are the Supreme Court of Canada judges.

Senator Nolin: There are also Federal Court judges.

Ms Cameron: I guess Federal Court as well because they are required to be resident in Ottawa.

The Chairman: In the same vein, you say that if a judge lives in B.C., he should be subject to B.C. provincial family law. Are you then saying that the federal government cannot set the parameters of pension and salary and payments for federal civil servants, no matter where they live? Is this not a requirement of employment that the federal government must have?

I understand that many similar pieces of legislation have exactly this type of provision in them. We are talking about a massive change of federal legislation if we follow your suggestion.

Ms Cameron: Exactly. That is why I think this is a far larger and more serious constitutional issue than appears at first glance when you simply restrict it to the Judges Act. In answer to your question, the strongest position I could take would be to say that it does not matter what kind of federal employee we are dealing with. Parliament does not have the jurisdiction to go beyond the pension entitlement to all the dispositions and death benefits, and so on and so forth. I think that is the preferred constitutional solution. This would have implications for the military, I suppose, the RCMP, MPs, maybe even senators.

The Chairman: It would have implications for every federal employee that moves from one province to another.

Ms Cameron: My fallback would be to ask whether there is a difference between judges and other federal employees and whether certain employees who are required to move around are so closely under the jurisdiction of the federal government -- maybe NCC employees, for example -- that it would be appropriate and, indeed, acceptable for their entitlement to be dealt with exclusively by the federal government. As I said, National Capital Commission people, or something like that. I do not really think judges are in that category. I would not characterize judges as employees of the federal government.

The Chairman: Nor would they, I am sure.

Ms Cameron: Nor would they. It is a big question.

My instinct remains the same, that is, that it is constitutionally inappropriate for Parliament to intrude on matrimonial property. It does not matter to me whether it is in relation to the RCMP, the military, or judges. However, I accept that there may be some room for a distinction between judges who are not employees per se and other people who are paid by the federal government and are employees and are closely under government regulation. They move around as employees of the federal government. That may be different. I am not convinced it is, but someone might be able to create a distinction that works for those individuals.

Senator Nolin: You mentioned the Clarke case, demonstrating the clash between provincial jurisdiction and the federal jurisdiction. As a Quebecer, I will add to that.

In Quebec, there is no such thing as "union de fait," or common-law spouse. Only one statute in Quebec refers to that, and that is the Régime des rentes du Quebec law, which deals with provincial pension. That is it. The civil code does not talk about that. In Quebec, you are married, and that is it. Are you sure there is only one case dealing with that problem?

Ms Cameron: No, I am not sure at all. As I say, I do not come before you as an expert on either family law or pension law. I simply did not have the time or resources to do a full three- or four-day study prior to coming here. I do not want to mislead anyone into thinking that I have spent long hours combing the library for decisions on point. I just have not. It may well be that there are others.

Senator Nolin: I want to clearly understand this. I understand that you have a problem saying that judges are employees, but let us take a more secure path. Judges are paid because of the authority created by section 100 of the Constitution. This Parliament is fixing those benefits, including the pension. I am sure you are not saying that this Parliament is not authorized to deal with the judges' pensions. If I properly understand your position, you are saying they should not extend this authority to the surviving spouse of the employee.

Ms Cameron: I am doing a fairly traditional division of powers analysis. I am saying there are pensions that are created by this legislation over here and then there are spousal benefits that are created over here, and there is a dividing line between the two. The pension benefits per se are within federal jurisdiction but the spousal benefits deal with matrimonial property. That is the suggestion I am making. I am not disputing at all that the federal government has the authority to establish the pensions.

Senator Nolin: The same thing would apply to soldiers, and not only direct employees of the federal government but also employees of corporations governed under federal statute. There are many of those.

Ms Cameron: Yes. The question is whether the pension should be regarded as the primary entitlement of the pensioner, and only the pensioner's primary entitlement, or whether pension should be understood more broadly to include disposition of the pension after the death of the pensioner or the primary beneficiary of the pension scheme. As I said before, you could put 10 or 12 constitutional law professors in a room and you would get a range of opinions on this issue.

Senator Nolin: As you know, the Judges Act already deals with children's entitlement to pension after the death of the judge. This is not new. Would your proposition also include a child or children of the deceased judge?

Ms Cameron: Just speaking off the top of my head, I am not aware that children have the same entitlements or claims against a parent as a married but separated spouse would have. I am not sure that children are in the same situation as married but separated spouses.

Senator Nolin: Do you mean a child could not petition one of his common-law parents? Is that what you are saying?

Ms Cameron: I am being purposefully ambiguous. All I am really saying is that I am not sure that a child is in the same position to make a legal claim against a pension fund as a married but separated spouse would be under provincial family law.

Senator Beaudoin: We were told right at the beginning that Bill C-37 act is supposed to harmonize the situation. In other words, if I understand that bill, there is no particular status for the judges. It is a harmonization for the Public Service and for parliamentarians -- members of Parliament and senators. If that is the case, does this proposed harmonization encroach on provincial family law?

It does not disturb me at all that in the federal state it may differ from one province to another. We have in the federation powers that are federal and powers that are provincial. We have two systems of law: common law and civil law. There may be a difference in family law in Quebec and Ontario, and I think there is. This is what federalism is about. I accept that system. It is the best system.

I agree with your questioning of where the dividing line is between the power of Parliament over pensions and the civil effects of marriage or divorce, or "conjoint de fait," as we say in French. If I understand what you say, it goes too far. There is no need to legislate in respect of definitions of surviving spouse. The federal authority should stop at the pension scheme. That is all. If it varies between Quebec and Ontario or another province of Canada, such is life in a federation.

I have great respect for your line of thinking, your good reasoning. However, my impression is that they have already encroached, but legally, over alimony and guardianship of children at the time of a divorce. They are doing the same thing with pensions at the time of a divorce.

It is already the case in other areas because we harmonize. Judges do not have a special status, if I correctly understand the purpose of that bill. Perhaps I am wrong.

Ms Cameron: I cannot speak to the harmonization point because I have not studied the pension schemes for other federal folk like the RCMP and the military. I take it as accepted just because I do not know differently that the purpose of this is not to create some special status for judges, that it kind of prefers them or gives them an advantage. It was never my impression that that was the purpose of Bill C-37.

As to this question of conflict between the federal and provincial schemes, and the fact that the federal government already has schemes in place in a variety of other areas, it has never been my understanding that the federal government can acquire constitutional authority by legislating in excess of its constitutional jurisdiction. If you want to be a purist about it, the fact that they might have these other pension schemes in place does not mean that they are constitutional. They might be unconstitutional, too.

Quite frankly, to make that argument in court would be an uphill battle. However, that does not detract from thinking through the issue before adding yet another pension scheme that produces an accretion to federal authority by the federal government undertaking the task to define "surviving spouse" and thereby encroaching on provincial family law. I am wandering a bit in my answer.

Again, to go back to my initial submission, I am slightly concerned about overreaching. The fact that there is more overreaching in new areas and new pieces of legislation does not to my mind cure the overreaching. We have to grapple with whether there is overreaching, or not. I also agree with you that, in a federal system, there has to be room for differences between provinces.

There may even have to be room for the federal and the provincial governments to share some of the jurisdiction on this issue. I am just not convinced that this legislation does it in a way that is faithful to sections 91 and 92.

Senator Cools: I would like to welcome the witness before us today. I am going to ask her a question and if she does not wish to answer, that is fine, I will understand.

Have you discussed this matter with former justice Willard Estey and, if so, are you willing to share some of the insights you gleaned from that discussion?

Ms Cameron: I do not have any hesitation whatsoever in answering the question. I have not discussed this issue with former justice Willard Estey, although I am aware that he has an interest in the legislation and the constitutionality of the legislation. I have not, myself, had any discussion with him about it.

Senator Cools: Having said that, I would like to recommend to the committee again that the committee call former justice Willard Estey because he has shown an interest and has made that interest known to many individuals. I would ask the committee to consider that.

If I can move directly to the issue of clause 11 -- which you may not have spoken to. You may have, but I was detained and missed a few of your initial remarks.

Clause 11 of Bill C-37 speaks to the issue of the lump sum payment. Basically, it says that, if and when there are two surviving spouses, the lump sum payment shall be paid to the common-law spouse. Section 46.1, which clause 11 of Bill C-37 amends, is new to the Judges Act in general. It only made its way into the act in 1989. Even then, it was an interesting anomaly, an unusual innovation. I am inviting your comments about the concept of the lump sum payment and the formula that is proposed in Bill C-37.

To an extent you have questioned the relationship between section 100 of the Constitution Act, 1867, and its relevance as it is harmonized with the other issues of matrimonial law and family law, which are clearly provincial. I agree with you that there is a very serious encroachment. I wonder if you could examine this clause with the same sort of critical eye. I will tell you why.

In this particular instance, this amendment to section 46.1 is not authorized under section 100 of the Constitution Act, 1867, the fix and provide salaries section. Therefore, it is an even greater deviation because there no is authority whatsoever in section 100 to authorize payment of such an annuity. Your reluctance is amplified, it seems to me, in this particular clause. Those are my words. I wonder if you could respond.

Ms Cameron: You are right that the language of section 100 refers explicitly to salaries, allowances and pensions, and then that is the scope of the fixing power, as you describe it. To start out, it would depend on how liberal a definition of pension you were prepared to accept and whether you would view that as being broad enough to encompass a lump sum payment upon the death of the pensioner. That is a preliminary point.

My second point about this lump sum payment provision is this: To the extent that this provision is inconsistent with the way a similar lump sum would be divided under provincial matrimonial law, then my answer is the same as it has been all the way along, that there may be a constitutional problem with the lump sum payment.

I did browse through some of the earlier testimony that you heard -- and you can correct me if I am mistaken in this -- but I understand that the rationale is funeral expenses, et cetera.

I do not have a view about the fairness of that particular provision. However, I once again take the view that, to the extent that it might be inconsistent with the disposition of a similar type of benefit under provincial family law, it is the same problem I have with the definition of surviving spouse.

Senator Cools: The reason I raise this to you, Professor Cameron, is that section 100 is actuated in a parliamentary way through section 53(1) of the Judges Act. Section 53(1) essentially was the authority to draw down directly from the consolidated revenue fund the salaries of judges. I am sure you know all of this. That particular section, 53(1), has been expanded to countenance all manner of charges that were never intended by the raison d'être for drawing judges' salaries directly against the consolidated revenue fund.

In 1989, when the Judges Act was amended to contemplate this section on the lump sum payment, what the legislators did was expand section 53(1) to include section 46.1. So the breaches are doubly or triply questionable, or strange or bizarre, whatever word you want to use. The encroachment that you describe becomes even more direct; it cannot then be justified as a scheme anticipated by section 100, the fix and provide section.

The encroachment becomes more obvious in this one, in that then it purports more directly to enter into the field of provincial family law that much more directly and that much more aggressively. It is just very interesting, that is all.

The Chairman: Any reaction, Professor Cameron?

Ms Cameron: No. I will just take the escape route of a good constitutional law professor and say that Parliament can do however many bizarre things it pleases, as long as it stays within the boundaries of the Constitution. I deliberately have tried not to pass judgment on the reasonableness of any of the provisions in this scheme. I have tried instead just to be a bit more clinical and objective about it, and ask the question: Is there something here that we should be worried about in terms of an encroachment on provincial jurisdiction?

The Chairman: We will now hear from our next witness, Ms Barbara Thompson.

Ms Thompson, let me begin by telling you that we run this committee fairly informally. We turn the floor over to you to make a statement, and then we open it up for questions from the senators. We try to keep it as informal and as easy on the witnesses as possible. The floor is yours.

Ms Barbara Thompson, Lawyer: Honourable senators, my presentation in and of itself is fairly informal. I thought it would be helpful to the committee if I were to go through some of the background in family law. I practice family law in Ontario and that is the only context in which I feel qualified to speak to the committee today.

Pensions are a very complex area. I will give a little bit of background on pensions, because they straddle several areas and there are several important times for them. If I am boring you or if I am telling you things you already know, please interrupt me.

There are two important times in family law respecting pensions. It is important to distinguish between the treatment of pensions and the rights and obligations that arise at those two times. One of the times is marriage breakdown. The other time is death. In addition, in family law, there are two distinct areas in which a pension will have an impact: one is property, which largely is in the context of marriage breakdown, where pension is treated as an asset; the other is support, where, whether upon death or marriage breakdown, the pension is treated as a flow of income.

The third point that I want to distinguish by way of opening remarks is that the definition of "spouse" is different as between property and spousal support rights in Ontario, and I believe across Canada. When we consider support, the focus is not on the conduct, but on the roles of the parties, and the changes to the spouses' economic positions that result from the marriage. The courts look to dependency and in some circumstances attempt to compensate a spouse in determining the entitlement.

Property is treated differently. In Ontario, it applies only to spouses who have been married. Except in very limited circumstances, it is an entitlement. Only in very rare cases will the equalization to property not take place. In limited circumstances, there can be a trust that is imposed under the laws of equity to property, but, generally, the statutory right to a sharing of property arises only at the end of a marriage.

Across Canada, a pension is an asset that is looked at when there is marriage breakdown. One of the biggest difficulties with how to deal with that asset flows from the fact that it is essentially non-liquid. There is an entitlement to share in that asset which comes from provincial law on marriage breakdown.

In Ontario, the capitalized value of the pension is determined on valuation date, which is the date that the spouses separate. There is litigation now before the Supreme Court of Canada to determine how, in fact, to value the pension or how to arrive at the capitalized value of the pension. I do not propose to go into that, except to say that, basically, it would be the same as the cost of purchasing an annuity that would yield the same annual income. Needless to say, that asset can be substantial. In many cases, the value is very substantial, particularly after a long relationship.

The courts in Ontario, taking into consideration private agreements, separation agreements between spouses, have come up with two basic ways of dealing with that asset. One is to defer the payment until retirement. That is sometimes called an "if and when" payment. It means that a portion of the payment is paid out to the non-pensioned spouse when the pension holder retires. Both must wait until retirement and then they receive a stream of income.

The other method of payment is an immediate or lump-sum payment.

There are problems with both methods. The deferred payment or the "if and when" is fair in many respects, because the non-pensioned spouse does not receive the benefit until the pensioned spouse receives it, and then it is a percentage of the ultimate payment that is being paid to the pensioned spouse. The difficulty there has been with security: how to secure that amount of an asset to continue to pay.

Traditionally, we have dealt with that through life insurance. Through a court order or through a separation agreement, we make sure that there is sufficient life insurance to meet the problems of death and of continuing the income stream.

The other method of payment has been lump-sum payments, where the pensioned spouse looks to other assets and makes the payment on account of the capitalized value of the pension.

The difficulty with that method of payment is that the pensioned spouse may never actually realize on the asset, should he or she die before retirement, and there may not be other assets with which to make that payment. There is no provision in matrimonial property legislation to order a third party, the pension administrator, to separate the pension asset.

This problem of security has been addressed federally through the Pension Benefits Division Act, which deals with certain federal pieces of legislation, and the Pension Benefits Standards Act. Both of those provide that a lump sum can be rolled out of the pension holder's pension plan and locked into a retirement vehicle for the non-pensioned spouse. These are both specific pieces of legislation which impact on other pension plans.

For example, the Pension Benefits Division Act, which is often called the PBDA, applies to the Canadian Forces Superannuation Act, the RCMP Superannuation Act, the Members of Parliament Retirement Act, and the Public Service Superannuation Act. It does not apply to the Judges Act.

The Pension Benefits Standards Act governs Crown corporations and federally regulated pension plans. The CBC, Bell, Bank of Canada -- those types of pension plans would be governed by the PBSA. It, too, allows for a payout or a transfer of actual funds into a locked-in retirement vehicle.

My point here is that the pension acts themselves do not provide for the mechanism to pay it out or to provide the security or the enforcement for the pension. We have a property right. We have a difficulty with how to make good on that property right or how to exercise the entitlement, and there are specific pieces of federal legislation that allow the pension holder to pay out.

The Canada Pension Plan does have an internal mechanism to actually split the pension; that is a credit splitting device, which is quite different from the roll-out. There the individual's entitlement is dealt with separately and it is truly a clean break.

I want to speak very briefly about Ontario legislation just so that you can put the whole security and enforcement issue into some context. Very little progress has been made in Ontario to divide pensions at source. There have been various recommendations through the Law Reform Commissions. The most recent in Ontario was a cabinet report on "pensions as family property" in 1995, where the recommendations were that there be both a benefit split and a lump-sum payout similar to the federal legislation; but Ontario does not have that legislation in place.

The Pension Benefits Act in Ontario will permit a transfer of a commuted value into an RSP in certain limited circumstances. It can only happen after retirement and the pension plan itself has to provide for that. It does not deal with all Ontario legislation.

The difficulties with pensions is that they straddle both support and property issues. It is an asset, and we deal with that asset on the breakdown of the marriage, but it is also a flow of income. In cases even where the pension has been dealt with as an asset, there may still be a continuing obligation on the pension holder to support the dependent spouse. That may even continue after retirement. The focus then would shift from the asset orientation and how to pay out the asset to income security. Again, the death of the spouse in those circumstances would have the most significant impact. Generally, that, too, has been dealt with through life insurance, provided there is sufficient life insurance available to the pensioned spouse.

On death, most plans provide for a pension or a survivor benefit to the spouse. Generally, the surviving annuitant is defined by the plan, and there are a number of definitions of "spouse." For property in Ontario, you must be married. For support in Ontario, three years of cohabitation or in a relationship of some permanence, with a natural or adoptive child.

Federal law also deals with the definition of "spouse." You have already heard Professor Cameron, the most qualified witness on the matter of constitutionality. "Spouse" is defined, of course, under the Divorce Act and it is also defined in the context of survivors' annuitants under certain pension plans. In my view, it does not impact on the property rights under the provincial law, because those rights are there. It is more the security aspects of the pension plan that would give me concern as a family lawyer, and whether there would be a surviving spousal benefit that could help that security or whether I would have to look to other assets to secure, such as putting a mortgage on a person's property or looking to life insurance.

Certain federal acts do not specifically define "spouse" in the way the proposed amendments to the Judges Act and the Members of Parliament Retiring Allowances Act do, with their extended version of "spouse." It is my understanding that under the Public Service Superannuation Act, the Canadian Forces Superannuation Act and the RCMP Superannuation Act there is a discretion in Treasury Board, generally, that, after 12 months of living together, so long as that is immediately before death, if the pension holder has resided with a member of the opposite sex and there has been a public representation of that person as a spouse, then that person can be a surviving annuitant.

Under those acts, there may be competing claims and the apportionment is again discretionary in Treasury Board. It is my understanding that Treasury Board's practice is to essentially do what is now proposed to be incorporated into the Judges Act legislation, but it is not legislated under those other federal acts.

Another thing that may be helpful to you is to be aware that divorce changes the status of the parties. After divorce, one is no longer a spouse. It is a severing of that status of being a spouse that is formalized. Because the parties are no longer spouses, they are no longer entitled to survivors' annuities.

By way of reference again to Ontario, the Pension Benefits Act of Ontario incorporates the Family Law Act support definition of "spouse," so we are back to the three years of cohabiting or a relationship of some permanence, with a child.

Surviving spousal benefits under the Ontario Pension Benefits Act are not payable if the spouses are living separate and apart and if the death of the pensioned spouse occurs before retirement, unlike the federal legislation, where you can be living apart and, if one of the parties dies pre-retirement, the non-pensioned spouse can still be the surviving annuitant, if there has not been divorce. Under Ontario law, for separated parties, the non-pensioned spouse will not receive the surviving annuity. However, if they are living together on the date of retirement, the spouse at the time of the first payment when the pension is made is entitled to be the surviving annuitant regardless of whether they separate after the pension starts to be paid out or not. Therefore, under Ontario legislation, there is a very different way of dealing with that. That is not family law entitlement. That is pension entitlement under that specific act.

From a family law perspective, the proposed changes to the Judges Act as they affect pensions are generally in line with other pieces of legislation. The statutory definition of spouse does bring it in line with other federal legislative definitions of spouse, as in the Income Tax Act, the Public Service Superannuation Act, and so on.

If there is a concern from a family law perspective, it would be the inability to make the lump-sum transfer, and that is the security issue of both the pension as an asset and the pension as a stream of income because the Pension Benefits Act does not apply to the Judges Act. I do not know if that was helpful. I am open to any questions you may have.

Senator Beaudoin: We have Ontario statutes, of course, that clearly define surviving spouse for many purposes under Ontario law. Do we have the same sorts of definitions at the federal level?

The thesis of Professor Cameron was to the effect that this bill may go a little bit too far and may be encroaching on provincial family law when it deals with pensions. That is a very interesting point of view. However, you did not touch on this question of constitutionality and, of course, you are under no obligation to do so. However, if you can help us, I would like to know what you think of this question of defining surviving spouse in a federal statute.

Ms Thompson: For the purpose of pension legislation, it is not a concern to me as a family lawyer because my clients' entitlement on the breakdown of the marriage will come under the Family Law Act or the Divorce Act. The entitlement to relief will not come under the Judges Act or the Members of Parliament Act or any of the other federal statutes. I would simply look to the surviving annuitant's rights under those various acts to assess whether I could secure the rights that are existing on marriage breakdown through the mechanisms of the Divorce Act or the Family Law Act, or whether I would have to look elsewhere in order to secure it.

Let me give you an example of a marriage breakdown. We will use a different act other than the Judges Act for this circumstance because few of us represent judges. In this example my client is married to a member of the military and the pension has been valued at $600,000. There are tax issues which I will not get into. We will say that the male is the pension holder. If there are no other assets, and if that is in after-tax dollars, he must pay $300,000 on account of that property right which is established under provincial law.

Then I have to consider how I will get that $300,000. If he has been in the military, the couple may not have a house. They may have been moving around. There may no other assets. I have to ask if there is a life insurance policy. It may be that he has worked too hard all of his life, has a terrible heart condition, and cannot get life insurance. Then I look for a way to ensure that she would gets an entitlement under the survivors' benefits of his pension plan.

Senator Beaudoin: It varies from one province to another. For example, in Quebec, we have a civil code, whereas Ontario and all the other provinces rely on common law. It may be that an estate in Ontario does not have the same destiny as an estate in Quebec; or an asset in Quebec may be different from an asset in Ontario. We live with that every day. It is not a problem. A pension, per se, is part of the estate.

Section 100 provides that Parliament should fix and provide the pension. The payment of the pension is not a problem. No one disagrees, of course, that the fixing must be done by the federal government. However, they go one step further and define surviving spouse and they legislate to a certain extent on the question of family law. Perhaps it is quite acceptable under the ancillary power of Ottawa, under section 91 and section 100, but if they do not do that, we must follow the law of Ontario, Quebec, or the applicable province. Do you think that Parliament should legislate on pensions and other issues that pertain to family law generally? Should we refrain from doing that?

Ms Thompson: It is certainly in keeping with the way other federal pension plans have been dealt with, from a family law perspective. It sort of "harmonizes," I guess is the term that has been used, the situation. It brings it into line from a family law perspective. The surviving annuity does not really impact on the right of the separated person in my example. She is entitled to $300,000 on account of that pension. How we get it to her is a different matter. If this fellow is a member of the Canadian Forces, or was a member, then I can do that through the vehicle of the Pension Benefits Division Act and roll out $300,000 into her retirement vehicle.

Some of the difficulty with the Judges Act is that it is not subject to the Pension Benefits Division Act and so that security becomes more problematic. Am I answering your question?

Senator Beaudoin: You are starting to, yes. You said that the Judges Act is not subject to the Pension Benefits Division Act.

Ms Thompson: No, it is not.

Senator Beaudoin: The intention is that it not be subject to that act.

Ms Thompson: Correct.

Senator Beaudoin: Perhaps there is some intention that pensions should dealt with uniformly in Canada, even if family law may vary from one province to another.

As you many know, the law regarding last wills and testaments varies from one province to another. A pension would be included in the assets of the estate and would be subject to the applicable family law in the province concerned. However, now that we have raised the question that it may encroach on provincial family law, the question is: should we do that? Is this just a vehicle? Is it a good thing to do that?

Ms Thompson: Yes, because from a strictly pragmatic, family law perspective, it helps with the payment. If there is no application of the Pension Benefits Division Act, which in Ottawa has helped family lawyers immensely, then, being able to apportion the surviving annuity under the Judges Act certainly helps. It helps with the difficult security issue. It does not change the entitlement under property law. It helps us by actually giving us a mechanism to allow that payment to happen.

Senator Beaudoin: It is helpful?

Ms Thompson: Yes.

Senator Nolin: You read Bill C-37, and if I understand your last answer correctly, you believe it is fair and équitable, as we say in French, to make those amendments to the Judges Act.

Ms Thompson: It is certainly in line with other pieces of legislation, and better than much of the Ontario provincial pension legislation. None of the pension acts deal with the method of payment or security on marriage breakdown. That is in separate legislation. Federally, it is the Pension Benefits Division Act or the Pension Benefits Standards Act. As a family lawyer, I do not see the changes in this legislation as going beyond what is generally out there. Quite frankly, I wish that Ontario would go into this area.

Senator Nolin: Do you have any problem with the fact that in various provincial statutes common-law marriage is defined as cohabitation for three years or two years whereas Quebec has nothing of that sort? In Ontario, it is 12 months. Does this raise any conflict for you?

Ms Thompson: I cannot speak to the constitutional issues.

Senator Nolin: No, I am only concerned with pure matrimonial law.

Ms Thompson: You have had the absolute expert testimony on constitutional issues. It does not really impact from a family law perspective, because the entitlement to support will come either at the end of a marriage through the Divorce Act, or under section 3 of the Family Law Act, which is the three years. Therefore, it does not really impact. It does not give an entitlement to support. Then from my practitioner's perspective, it would definitely be ultra vires if it attempted to establish, provincially, a support right to people who had only been living together. That is probably as far as I can go constitutionally.

Senator Nolin: You refrained from using a scenario involving a judge and that is obviously because they are not included in the sphere of the Pension Benefits Division Act. I would ask you, however, to use an example involving a judge with and without the passage of Bill C-37, so I may understand what will happen when a judge dies or divorces.

Ms Thompson: If a judge dies today and he and his spouse, to whom he must be married, or she must be married, survives him or her, that person would be entitled to the surviving superannuation.

Let us say the judge is a woman and she dies, having separated from her married spouse. They were not divorced but she was cohabiting with someone else for a period of 12 months. Under the present act, only the married spouse would be entitled to that superannuation, the surviving annuity. If the judge separates and we value her pension at the same figure of $600,000, then she has an obligation to pay her spouse $300,000 on account of her pension, and then we must look to other places.

Senator Nolin: That is half of the capital value, the value of the pension.

Ms Thompson: Yes, assuming that is the only asset. Then she either has to look to other assets, if she has them, or come up with life insurance or some other way of paying it out. If we assume that the judge's pension is her only asset and she must pay $300,000 to her spouse, and she does not have it, then we might decide to pay that out through this "if and when" or deferred pension pay-out. The $300,000 comes out as a stream of income, as a proportion of the judge's pension. When she retires, a certain portion of that would go to her husband as a property issue.

The difficulty is how to pay the rest of it out if the judge dies before that full amount is paid out, and there we might look to life insurance. If it would be possible to name the person as a surviving annuitant, then that might step into the place of life insurance, if the surviving annuity could continue over a period of time.

Senator Nolin: That is at the time of separation or divorce.

Ms Thompson: Yes.

Senator Nolin: Both. When you split the assets of the union, that is the kind of mechanism that you use to calculate the shares.

Ms Thompson: Yes.

Senator Nolin: It means that now and after the passage of Bill C-37, the value of a judge's pension is calculated for the remainder of his possible life.

Ms Thompson: It can be done that way. Let us say my judge client separates. She owes her husband $300,000, and they have a house that is worth $300,000. She may choose to give him the house. If she has other assets, such as RRSPs which are also worth $600,000, she may be able to make the payment through that if the spouse has assets.

Senator Nolin: My question relates to whether the calculation of the assets include the total value of the pension. As I read the act, the judge receives a pension cheque monthly.

Ms Thompson: For family law purposes, we value it very differently.

Senator Nolin: That is why I am asking the question. Let us say the judge divorces at age 60 and he lives for another 25 years. There are many actuarial tables and ways to calculate that. They will calculate the remaining 25 years at "x" amount per month and determine that it will equal "y." The evaluation of the assets of the union will include that amount, is that correct?

Ms Thompson: Correct.

Senator Nolin: The is the situation under the existing statute, but it will be more specific with the passage of the Bill C-37.

Ms Thompson: That is because it is provincial property law.

Senator Moore: In your example, the female client judge owes the separated spouse $300,000. Let us assume that is the only substantial asset. You said that the problem lies in ensuring that $300,000 is paid to the former husband. Let us further assume that she retires and $100,000 is paid out. You told us that, if then the judge who was the participant in the pension plan dies, there would be no further spousal benefits, but that would be covered by way of insurance.

Ms Thompson: Yes.

Senator Moore: At what point would you try to acquire an insurance policy? How do you determine what the amount of the benefit payable under that policy will be? Do you make the actuarial calculation and start with $300,000? Can you buy a policy to cover the $300,000 or whatever lesser amount may be owing upon the death? How do you do it; and have you done that in some situations?

Ms Thompson: Yes. We do that at the time of negotiating the separation agreement. If we are following a deferred pay-out of the pension, then a very important part of the whole negotiated deal will be the security for the pension plan, whether that is through life insurance or another vehicle. Of course, as we all get older, the cost of maintaining any kind of life insurance gets increasingly more expensive.

Senator Moore: Can you buy a policy with that kind of a flexible payout figure in it?

Ms Thompson: Yes. That is what we would be looking at, and I would ask the actuary who would value the pension to also give me a likely scheme of the type of protection or security that the person would need.

Senator Fraser: I must confess I find this whole subject increasingly baffling. This has nothing to do with your testimony, which was fascinating. I want to ask one small follow-on question to one of Senator Nolin's many excellent questions.

Regarding the harmonization principle, has there ever been, to your knowledge, a case where the provincial definition of common-law spouse came into conflict with the Treasury Board definition of common-law spouse? If so, what happened?

Ms Thompson: I do not know of any.

Senator Fraser: Is this an impossibility because they deal with different areas? You see how at sea I am here.

Ms Thompson: No, I think it is an excellent question because it is a very confusing area. Treasury Board would decide whether or not the person was a surviving annuitant under the pension plan, had they been living common-law. If that dependent person then chose to sue the deceased's estate for support, then the court would look at the provincial definition of spouse. They would certainly look to the annuity that she had in determining whether there was any need, but the continuing annuity would be basically an asset that she would have.

Senator Fraser: In this case, would that be unlikely to happen because Treasury Board's definition is more generous?

Ms Thompson: Yes.

Senator Fraser: In practice, it just would not arise.

Ms Thompson: I cannot think of any circumstances where it would arise, but that does not preclude that they are out there.

Senator Moore: Ms Thompson, I think you said that, upon divorce, the status of spouse disappears and so does entitlement to surviving spousal allowance under the pension plan that we have been discussing. Does that apply if there is no separation agreement or divorce decree?

Ms Thompson: That only applies if there has not been a property settlement under the provincial act. For example, and this may be going further than you want to go, but it is possible under the Divorce Act, 1985 to separate the corollary relief, including the property settlement, from the actual divorce. If that happens in my practice and I have a non-pensioned spouse, then I appeal to the court to stay that divorce until such time as the property aspects, including security, have been determined either through a court order, negotiations, or an agreement.

Senator Moore: Can the Treasury Board override such an agreement? You mentioned that you did not think there was legislation that caused the plan administrator, the Treasury Board, to split the asset.

Ms Thompson: No, there is not.

Senator Moore: Does that mean that Treasury Board discretion is paramount to property settlement?

Ms Thompson: Treasury Board could take the position, for example, that it is not bound by a private contract between two parties, or if the Government of Canada is not a party to the court order. For example, if the court ordered, or if the agreement purported to direct Treasury Board to name this person as a surviving annuitant notwithstanding their divorce, Treasury Board, to my mind, would not be bound.

Senator Moore: It would not be bound?

Ms Thompson: No.

Senator Moore: If you had a divorce decree and this settlement agreement was part of it, Treasury Board would still not be bound by that?

Ms Thompson: I do not believe so, not unless they were in fact a party to it, or unless it came within their discretion. Certainly, it is clearer under this act because it is not discretionary. The dependent spouse would know exactly where she stood.

The Chairman: Miss Thompson, you are telling us that, if we follow the advice of Professor Cameron and split the provincial jurisdiction away from the areas of federal jurisdiction, which is the pension, that we will have problems with this act because provincial jurisdictions are pretty well all over the place and even differ within the individual provinces themselves.

Ms Thompson: Again, I am not qualified to speak on the constitutionality aspects. However, from a family law perspective, I keep going back to the entitlement which comes out of family law, and the definition of spouse stays the same regarding the entitlement to support for a so-called cohabiting or common-law spouse. The fact that there is a benefit under federal legislation to a surviving spouse, does not really impact, to my mind, on the property rights or the support rights at the end of a marriage under the provincial law.

The Chairman: I think you danced around the subject. You did not really answer the question.

Ms Thompson: I do not know how to be any more direct. In part, that may be my lack of ability to speak to the constitutionality of the matter.

The Chairman: You mentioned that the definition of spouse in this bill parallels that found in other federal statutes. Is the phrase in clause 1 of the bill: of the "opposite sex" common in other federal acts?

Ms Thompson: Yes. It is across the board now. There certainly has been recent jurisprudence in this regard, and I understand some of your witnesses spoke to that issue. It is also common, provincially, in relation to support rights or property rights, and that, too, is being litigated.

The Chairman: That phrase is commonly used provincially as well as federally.

Ms Thompson: Yes.

Senator Fraser: It is now being litigated.

Ms Thompson: As far as support rights go, an Ontario case has been argued at the Supreme Court level, but the court has not yet released its decision.

The Chairman: If there are no further questions, I thank you very much for coming at short notice to appear before us today.

The committee adjourned.