Munroe v. Munroe Estate et al., (1995) 57 B.C.A.C. 137 (CA)

• Judge: Cumming, Rowles and Finch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 24, 1995
• Jurisdiction: British Columbia
• Citations: (1995), 57 B.C.A.C. 137 (CA)

Munroe v. Munroe Estate (1995), 57 B.C.A.C. 137 (CA);

    94 W.A.C. 137

MLB headnote and full text

Elsie Ernestina Munro (plaintiff/respondent) v. Lorraine Ruth Munro, Executrix and Trustee of the Estate of Laurence Hector Munro, also known as Laurance H. Munro, also known as Larry Munro, Deceased (defendant/appellant)

(V02195)

Indexed As: Munroe v. Munroe Estate et al.

British Columbia Court of Appeal

Cumming, Rowles and Finch, JJ.A.

March 24, 1995.

Summary:

The deceased's former wife sued his estate for damages for breach of a covenant in their separation agreement to maintain her as the beneficiary of her share of his two fed­eral pensions. The trial judge allowed the action. See 3 R.F.L.(4th) 448. The estate and the deceased's widow appealed.

The British Columbia Court of Appeal dismissed the appeal.

Family Law - Topic 3247

Separation agreements, domestic contracts and marriage con­tracts - Terms - Pension rights - In a separation agreement, a hus­band coven­anted to nominate the wife as joint life and last survivor respecting his federal pen­sions - The agreement clearly provided that the wife was to be treated as having an interest in the pensions - The husband's right under the pensions was a family asset to which his wife was entitled to an undi­vided one-half interest - The governing federal statutes prohibited the nomination - The husband died without complying - The British Columbia Court of Appeal held that it was unjust not to enforce the agreement, which was not based on mis­take, either unilateral or common - The court found the husband breached his duty as trustee of the wife's interest, entitling her to damages.

Cases Noticed:

Seppanen v. Seppanen (1991), 59 B.C.L.R.(2d) 26 (S.C.), refd to. [para. 14].

Magee v. Pennine Insurance Co., [1969] 2 All E.R. 891 (C.A.), refd to. [para. 15].

Stellar Properties Ltd. et al. v. Botham Holdings Ltd. (1994), 41 B.C.A.C. 185; 66 W.A.C. 185; 94 B.C.L.R.(2d) 42 (C.A.), refd to. [para. 16].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 21].

Statutes Noticed:

Canadian Forces Superannuation Act, R.S.C. 1985, c. C-9, generally [para. 6].

Family Relations Act, R.S.B.C. 1979, c. 121, sect. 43(2), sect. 45(3) [para. 21].

Pensions (Public Service) Act, R.S.B.C. 1979, c. 318, sect. 18(1)(c) [para. 6].

Public Service Superannuation Act, R.S.C. 1985, c. P-36, generally [para. 6].

Counsel:

R.C. Doell, for the appellant;

R.S. Gill, for the respondent.

This appeal was heard on January 26, 1995, in Victoria, B.C., before Cumming, Rowles and Finch, JJ.A., of the British Columbia Court of Appeal.

On March 24, 1995, Cumming, J.A., delivered the following judgment for the Court of Appeal.