Proceedings of the Standing Senate Committee on
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.
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
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
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
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
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
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
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
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
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
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
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
Senator Nolin: I would like to pursue that line. I will put a scenario on the
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
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
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
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
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
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
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
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
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
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
Senator Nolin: You mentioned the Clarke case, demonstrating the clash between
provincial jurisdiction and the federal jurisdiction. As a Quebecer, I will add
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
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
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
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
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
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
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
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
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
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
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
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
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
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'
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
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
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
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
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
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
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
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
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
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
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
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
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
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.