Swan v. Canada (Attorney General), (1998) 234 N.R. 12 (FCA)

• Judge: Desjardins, Robertson and McDonald, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 30, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 234 N.R. 12 (FCA)

Swan v. Can. (A.G.) (1998), 234 N.R. 12 (FCA)

MLB headnote and full text

Temp. Cite: [1998] N.R. TBEd. NO.009

Barbara Swan (applicant/respondent) v. The Attorney General of Canada (respondent/appellant)

(A-648-97)

Indexed As: Swan v. Canada (Attorney General)

Federal Court of Appeal

Desjardins, Robertson and McDonald, JJ.A.

October 30, 1998.

Summary:

Spouses divorced in 1987 after 27 years' marriage. The husband's Armed Forces pension benefits were ordered to be equally divided by the British Columbia Supreme Court. His pension commenced in 1973. The wife was entitled, under the Rutherford formula, to 50% of 31.97% of the present value of the pension. At issue was whether the date for valuing the pension was the date of divorce or the date when the pension division was effected. The Directorate of Pay Services of the Armed Forces, for division purposes, valued the pension on the date the division was effected (i.e., April 9, 1997). The wife sought judicial review.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported [1997] F.T.R. Uned. 514, allowed the application. The wife was entitled to 50% of 31.97% of the pres­ent value of the pension as of the date of divorce (a higher amount than valuation at a later date). The Attorney General appealed.

The Federal Court of Appeal allowed the appeal and restored the Directorate's deci­sion. The divorce order was a condition pre­cedent to a division under the Pension Bene­fits Division Act and Regulations. Valuation and division were governed by the Act and

Regu­lations, not the divorce order. Accord­ingly, the proper date of valuation was the date of division (April 9, 1997), not the date of divorce.

Crown - Topic 5265

Officials and employees - Pension benefits - Division - Spouses divorced in 1987 - The divorce order awarded the wife an equal share of the husband's federal pen­sion benefits based on the Rutherford formula (50% of 31.97% of value of pen­sion) - The wife applied under the Pension Benefits Division Act (in force Sept. 30/94) for a division - At issue was whether the pension was to be valued and divided as per the divorce order (i.e., present value as of date of divorce) or whether the divorce order was simply a condition precedent to a division under the Act and the pension was to be valued as of the date the division was effected (April 9/97) - The Federal Court of Appeal held that division and valuation were governed by the Act, not the divorce order - The divorce order merely triggered the applica­tion of the Act - The division was gov­erned by the Act, not the terms of the divorce order.

Statutes Noticed:

Pension Benefits Division Act, S.C. 1992, c. 46, sect. 4(1), sect. 4(2) [para. 9]; sect. 8(1), sect. 8(2), sect. 8(3) [para. 10]; sect. 11 [para. 15].

Counsel:

Ursula Tausher and Lt. Col. Randy Smith, for the appellant;

Doris Wilson, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Bishop & McKenzie, Edmonton, Alberta, for the respondent.

This appeal was heard on October 19, 1998, at Edmonton, Alberta, before Desjard­ins, Robertson and McDonald, JJ.A., of the Federal Court of Appeal.

On October 30, 1998, Robertson, J.A., delivered the following judgment for the Court of Appeal.