McMorran v. McMorran, (2014) 588 A.R. 22

• Judge: Berger, Slatter and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 02, 2014
• Citations: (2014), 588 A.R. 22;2014 ABCA 387

McMorran v. McMorran (2014), 588 A.R. 22; 626 W.A.C. 22 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.085

Scott Menzies McMorran (respondent/plaintiff) v. Catherine McMorran (respondent/defendant) and Alberta Pension Services Corporation (appellant)

(1403-0120-AC; 2014 ABCA 387)

Indexed As: McMorran v. McMorran

Alberta Court of Appeal

Berger, Slatter and Wakeling, JJ.A.

November 18, 2014.

Summary:

The parties married in 1986 and divorced in April 2002. A March 2003 matrimonial property order entitled the wife to a portion of the husband's pension. The husband remarried. Two issues arose. Firstly, under the provisions of the pension plan, the husband was required to name a "pension partner" which determined how long the pension would run. All benefits under the pension would end after he and his pension partner had died. Secondly, the husband was required to elect the percentage reduction in the pension following his death. He could elect to have no reduction, although that would result in a smaller pension during their joint lives. Or he could have the pension reduced by up to 50 percent, which would give him a much larger pension during his lifetime, and a much-reduced pension for his widow. The wife applied to have the husband name her as his pension partner and to have him elect a pension that did not have her pension reduced on his death.

The Alberta Court of Queen's Bench, in a decision reported at 574 A.R. 101, directed the husband to name the wife as his pension partner as to the portion of his pension he agreed (and was ordered) to share with under the March 2003 order. He was directed to elect a joint non-reducing pension as to this portion of his pension entitlements. If he failed or refused to do so, the administrator was authorized to make these elections on his behalf. The administrator appealed.

The Alberta Court of Appeal allowed the appeal.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions (incl. bridging benefits and pension annuities) - The parties were married for 15 years - A March 2003 matrimonial property order entitled the wife to a portion of the husband's pension - He had worked for the employer for 22 years - The husband remarried - At issue was the type of pension rights that could be granted under the Special Forces Pension Plan, when the primary pensioner had married more than once - "Can a matrimonial property order effectively make each of the first and second wives 'pension partners' under the Special Forces Pension Plan?" - The chambers judge directed the husband to name the wife as his pension partner as to the portion of his pension he agreed (and was ordered) to share with her under the March 2003 order - There was no reason why under the legislation the husband could not have two pension partners or why that was outside the spirit and intention of the legislation - He should be able to have the wife as his pension partner as to the 15/22nds of his pension entitlements he agreed to and was required by court order to share with the wife - He should also be able to have his new wife as his pension partner for his remaining pension entitlements - The administrator appealed - The Alberta Court of Appeal allowed the appeal - Berger and Slatter, JJ.A., found that the wording of the Special Forces Pension Plan Regulation did not support an interpretation that a pensioner could have multiple pension partners - See paragraphs 1 to 23 - Wakeling, J.A., affirmed that the Special Forces Pension Plan allowed a pensioner to have only one pension partner - See paragraphs 24 to 94.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 10].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 301 D.L.R.(4th) 696; 2008 NSCA 74, refd to. [para. 10].

McAlister v. McAlister, [1983] 2 W.W.R. 8; 41 A.R. 277; 23 Alta. L.R.(2d) 141 (Q.B.), refd to. [paras. 12, 35, footnote 16].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 91 Alta. L.R.(4th) 1; 2008 ABCA 220, refd to. [para. 21].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 24, footnote 3].

Bizon v. Bizon et al. (2014), 572 A.R. 49; 609 W.A.C. 49; 2014 ABCA 174, refd to. [para. 41, footnote 17].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 41, footnote 17].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 41, footnote 17].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 41, footnote 17].

Chalifoux v. Driftpile First Nation et al. (2002), 299 N.R. 259 (F.C.A.), refd to. [para. 41, footnote 17].

Broome v. Cassell & Co., [1972] A.C. 1027 (H.L.), refd to. [para. 41, footnote 17].

Dreco Energy Services Ltd. et al. v. Wenzel Downhole Tools Ltd. (2008), 429 A.R. 51; 421 W.A.C. 51 (C.A.), refd to. [para. 43, footnote 18].

Wallis v. Smith (1882), 21 Ch. D. 243 (C.A.), refd to. [para. 54, footnote 29].

Sydall v. Castings Ltd., [1967] 1 Q.B. 302 (C.A.), refd to. [para. 55, footnote 30].

R. v. Laporte (1972), 29 D.L.R.(3d) 651 (Que. Q.B.), refd to. [para. 56, footnote 32].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 56, footnote 32].

Home Office v. Harman, [1982] 1 All E.R. 532 (H.L.), refd to. [para. 56, footnote 32].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 69, footnote 37].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 69, footnote 37].

Henry v. Workers' Compensation Board (Sask.) (1999), 177 Sask.R. 35; 199 W.A.C. 35; 172 D.L.R.(4th) 73 (C.A.), refd to. [para. 69, footnote 38].

Co-operative Health Centre v. Prince Albert (City) (1987), 58 Sask.R. 281; 42 D.L.R.(4th) 706, refd to. [para. 69, footnote 38].

Roschen v. Ward (1929), 279 U.S. 337, refd to. [para. 69, footnote 38].

Olmstead v. United States of America (1928), 277 U.S. 438, refd to. [para. 69, footnote 39].

Johnson v. Southern Pacific Co. (1904), 196 U.S. 14, refd to. [para. 69, footnote 39].

Alberta (Minister of Justice) et al. v. Cardinal et al. (2013), 565 A.R. 271; 2013 ABQB 407, refd to. [para. 70, footnote 40].

Alberta Union of Provincial Employees v. Alberta, [1992] C.L.L.C. 14,390 (Alta. P.S.S.R. Bd.), refd to. [para. 70].

Sealy (Western) Ltd. v. Upholsterers' International Union of North America, Local 34 (1985), 20 L.A.C.(3d) 45, refd to. [para. 78].

Carrigan v. Quinn (2012), 298 O.A.C. 281; 112 O.R.(3d) 161 (C.A.), refd to. [para. 80, footnote 45].

Carrigan v. Carrigan Estate - see Carrigan v. Quinn.

Rawlins v. Rawlins, [2005] A.R. Uned. 552; 2005 ABQB 503, refd to. [para. 90, footnote 53].

Ontario Teachers' Pension Plan Board v. Superintendent of Financial Services (Ont.) et al. (2004), 182 O.A.C. 339; 236 D.L.R.(4th) 514 (C.A.), refd to. [para. 90, footnote 53].

Anderson v. Wilson (1933), 289 U.S. 20, refd to. [para. 90, footnote 53].

Garon (Isidore) ltée v. Syndicat du bois ouvré de la région de Québec inc. (C.S.D.) et al., [2006] 1 S.C.R. 27; 344 N.R. 1, refd to. [para. 91, footnote 54].

Alberta v. McGeady et al. (2014), 585 A.R. 311; 2014 ABQB 104, refd to. [para. 91, footnote 54].

J.W. v. Victims of Crime Financial Benefits Program (2013), 560 A.R. 114; 2013 ABQB 212, refd to. [para. 91, footnote 54].

Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 107 et al. (2008), 243 O.A.C. 51 (Div. Ct.), refd to. [para. 91, footnote 54].

L/3 Communications/Spar Aerospace Ltd. v. International Association of Machinists and Aerospace Workers, Local Lodge 1579 (2010), 201 L.A.C.(4th) 85, refd to. [para. 91, footnote 54].

May et al. v. Saskatchewan, [2013] 7 W.W.R. 656; 405 Sask.R. 308; 563 W.A.C. 308 (C.A.), refd to. [para. 91, footnote 55].

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England (1765-1769), vol. 1, p. 88 [para. 77].

Cardozo, Benjamin, Judicial Process (1921), p. 141 [para. 41, footnote 17].

Frankfurter, Felix, Some Reflections on the Reading of Statutes (1947), 47 Colum. L. Rev. 527, pp. 529 [para. 69]; 537 to 538 [para. 78]; 543 [para. 69, footnote 38].

Holmes, Oliver, Speeches (1896), p. 68 [para. 56, footnote 32].

Kaplan, Ari, and Frazer, Mitch, Pension Law (2nd Ed. 2013), pp. 15 [para. 79, footnote 44]; 88 [para. 24, footnote 2]; 294 [para. 61].

Scalia, Antonin, and Garner, Bryan, Reading Law: The Interpretation of Legal Texts (2012), pp. 31 [para. 69, footnote 38]; 57 [para. 70, footnote 41]; 130 [paras. 75, 77].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 375 [para. 48, footnote 23]; 708 [para. 65, footnote 35].

Counsel:

M.L. Pollock, for the respondent, Scott Menzies McMorran;

J.R.B. Shortreed, for the respondent, Catherine McMorran;

D.M. McLaughlin, for the appellant.

This appeal was heard on September 2, 2014, by Berger, Slatter and Wakeling, JJ.A., of the Alberta Court of Appeal. The memorandum of judgment of the Court of Appeal was delivered on November 18, 2014, and included the following opinions:

Berger and Slatter, JJ.A. - see paragraphs 1 to 23;

Wakeling, J.A., concurring in the result - see paragraphs 24 to 94.