MacDougald v. MacDougald, (1988) 86 N.B.R.(2d) 308 (CA)

• Judge: Hoyt, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 27, 1987
• Jurisdiction: New Brunswick
• Citations: (1988), 86 N.B.R.(2d) 308 (CA)

MacDougald v. MacDougald (1988), 86 N.B.R.(2d) 308 (CA);

    86 R.N.-B.(2e) 308; 219 A.P.R. 308

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

D. Ian MacDougald (applicant/appellant) v. Jane MacDougald (respondent/respondent)

(216/86/CA)

Indexed As: MacDougald v. MacDougald

New Brunswick Court of Appeal

Hoyt, Rice and Ayles, JJ.A.

January 15, 1988.

Summary:

The New Brunswick Court of Queen's Bench, Family Division, in a decision unreported in this series of reports, divided a couple's marital property equally and then awarded the wife and two children maintenance of $461.86 every two weeks and retroactive support of $100.00 weekly commencing March 17, 1985, pursuant to s. 116(1)(i) of the Family Services Act. The husband appealed; the wife cross-appealed.

The New Brunswick Court of Appeal dismissed the appeals.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - Pensions - The New Brunswick Court of Appeal held that a spouse's employment pension fund, insofar as it was built up during cohabitation, was marital property - See paragraphs 7 to 10.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Pensions - [See Family Law - Topic 868 above].

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Pensions - The New Brunswick Court of Appeal discussed the method of determining the value of a spouse's pension plan at the time of separation - The court stated that a defined benefit pension plan has a present value independent of the amount of the contributions and, unlike a money purchase plan, the value of the contributions is not necessarily equal to the present value of the plan - The amount of a retirement annuity plan is defined by the plan itself and not determined by the amount held in the employee's account - The retirement pension is determined by a formula based on the employee's length of service and level of earnings over a period of time - The court stated that actuarial evidence respecting the present value of anticipated retirement income earned to the date of separation would be helpful in cases of defined benefit plans - See paragraphs 13 to 14.

Family Law - Topic 888

Husband and wife - Marital property - Distribution orders - Considerations - Valuation - Pensions - The New Brunswick Court of Appeal stated that a trial judge, by choosing to divide and distribute the marital property, including the husband's pension plan, was obliged to value it as of the date of separation - The court noted that courts may avoid valuation by ordering that the pension proceeds be divided if, when and as they are paid to the employed spouse - The court held that this approach is warranted where the employed spouse is approaching pensionable age or when the present value of the pension is so large that it would be impracticable, if not impossible, for the employed spouse to fund an immediate payment - The court held that an immediate distribution is preferable where the employed spouse is many years from receiving his pension and the amount involved is not large - See paragraph 15.

Family Law - Topic 888

Husband and wife - Marital property - Distribution orders - Considerations - Valuation - Pensions - In valuing a husband's employment pension plan at the date of separation, the trial judge reduced the amount of contributions and interest by the amount of income tax which the husband would have to pay, calculated at his marginal rate, had he received the sum in 1985 (the year of separation) - The judge further discounted the amount by 25%, because the wife would receive the money now rather than having to wait to receive a portion of the deferred pension - The New Brunswick Court of Appeal affirmed the reductions - See paragraphs 16 to 19.

Cases Noticed:

Herchuk v. Herchuk (1983), 48 A.R. 169; 35 R.F.L.(2d) 327 (C.A.), appld. [para. 8].

Rutherford v. Rutherford (1981), 23 R.F.L.(2d) 337 (B.C.C.A.), affing. 14 R.F.L.(2d) 41 (B.C.S.C.), refd to. [para. 9].

George v. George (1982), 23 Man.R.(2d) 89; 35 R.F.L.(2d) 225 (C.A.), refd to. [para. 9].

Tataryn v. Tataryn (1984), 30 Sask.R. 282; 38 R.F.L.(2d) 272 (C.A.), refd to. [para. 9].

Isbister v. Isbister (1981), 11 Man.R.(2d) 353; 22 R.F.L.(2d) 234 (C.A.), refd to. [para. 9].

Zakreski v. Zakreski (1981), 10 Sask.R. 1; 21 R.F.L.(2d) 153 (U.F.C.), refd to. [para. 9].

Clarke v. Clarke (1986), 72 N.S.R.(2d) 387; 173 A.P.R. 387; 1 R.F.L.(3d) 29 (C.A.), refd to. [para. 9].

Northorp v. Northorp (1987), 9 R.F.L.(3d) 13, refd to. [para. 9].

Stevens v. Stevens (1986), 70 N.B.R.(2d) 128; 179 A.P.R. 128, refd to. [para. 15].

Grainger v. Grainger (1987), 6 R.F.L.(3d) 175, refd to. [para. 18].

Statutes Noticed:

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 9 [para. 17].

Authors and Works Noticed:

Matrimonial Property: Division of Pension Benefits Upon Marriage Breakdown, Alberta Institute of Law Research and Reform, p. 37 [para. 11].

Counsel:

Myrna Athey, Q.C., for the appellant;

James McCue, for the respondent.

These appeals were heard before Hoyt, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal on October 27, 1987. The decision of the Court of Appeal was delivered by Hoyt, J.A., on January 15, 1988.