Revising ex-wife’s share of pension didn’t rewrite separation agreement: Ontario Court of Appeal

Ex-wife entitled to half of ex-husband's pension at retirement

Revising ex-wife’s share of pension didn’t rewrite separation agreement: Ontario Court of Appeal

A trial judge should consider a separation agreement’s provisions as a whole and interpret them so that they make the most sense according to their objective intentions as reflected in the agreement, the Ontario Court of Appeal has ruled.

In Talotta v. Talotta, 2022 ONCA 474, the parties separated in September 1995 after 16 years of marriage. Their April 1997 separation agreement required the appellant husband to give the respondent ex-wife one-half of his pension from the news company where he worked, valued from the date of marriage up to the date of separation in the amount of $10,372.59, to be paid on the date of his retirement or separation from his company.

The man retired in July 2018. He failed to provide his ex-spouse with an actuarial valuation of his pension and her share of his pension benefits earned during their marriage, as required by the separation agreement.

At trial, the woman presented uncontested expert evidence regarding actuarial valuation, which provided that the $10,372.59 amount stated in the separation agreement represented only half of her former husband’s contributions, with interest, to a defined-benefit pension plan as of December 1995.

The trial judge, adopting an approach offered by the ex-wife’s expert, found her entitled to $76,966, corresponding to a pro-rata share of the actual present value of her former husband’s pension benefit accumulated during the marriage.

On appeal, the man argued that the judge erroneously interpreted the agreement’s plain language and should have awarded the stated $10,372.59 amount instead of the current value of the ex-wife’s share of his pension. He wanted to file an affidavit explaining his version of events, but he did not bring a motion seeking leave to file fresh evidence.

Ontario Court of Appeal agrees with trial judge’s interpretation of separation agreement

The appellate court, dismissing the appeal, held that the trial judge did not rewrite the parties’ agreement, as contended by the appellant. Rather, the judge reasonably interpreted the agreement in line with the equalization entitlements under Ontario’s Family Law Act and with the decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.

The appellate court found that the following interpretation made the most sense: the parties’ objective intention was for the former wife to receive half of the value of the portion of the pension attributable to the period of the marriage.

Some of the agreement’s provisions – including the deferred payment of the woman’s share of the pension until her ex-husband’s retirement and the requirement that he give an actuarial valuation of his pension – supported the judge’s decision to emphasize the language of half of the pension valued from the date of marriage until the date of separation instead of the $10,372.59 amount, the appellate court added.

The judge was entitled to accept the evidence of the former wife’s expert, the appellate court further said. The uncontested expert evidence anchored the judge’s determination of the woman’s proportionate share of the current value of her ex-husband’s pension.

Finally, the appellate court rejected the appellant’s affidavit for being an abuse of process, considering the history of the proceedings, his conduct, and the previous court orders.

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