J. Q.B.M. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: JEAN ROSE ZACHARUK and RUSSELL Y. ZACHARUK RESPONDENT P.E. Pacholek for the applicant R.B. Hunter for the respondent JUDGMENT MacLEOD J. March 25, 1994 The parties married February 24, 1952, and were divorced in 1984. The matrimonial property was settled by the parties and consent order giving effect to that settlement was presented to and granted by the court on December 19, 1985. Clause 14 of that order is as follows: 14. The pension of the Respondent at the University of Regina, more particularly described by reference to the Social Insurance Number of the Respondent, 613-582-097, shall be divided as follows: (a) The Applicant shall receive vested interest in the pension to the extent described in this order and the University of Regina is hereby directed to give effect to this vesting order and to make all monthly pension payments for the Applicant directly from the pension plan to her; (b) If the Respondent retires at the normal retirement date of June 30, 1993, the share of the pension to be received by the Applicant shall be 40%; (c) If the Respondent retires at age 60, the share of the pension to be received by the Applicant shall be 44%; (d) If the Respondent retires between age 60 and age 65, the share of the pension to be received by the Applicant shall be calculated on pro rated basis between the percentages of 40% and 44% such that if he retires, for example, at age 62.5 years, the percentage to be received by the Applicant will be 42%; (e) If the Respondent retires voluntarily prior to age 60, the share of the pension to be received by the Applicant shall be 48% and the specific intent of this order is to encourage the Respondent to continue in his employment until at least age 60; (f) If the Respondent dies prior to his retirement, the Applicant shall receive the greater of $100,000.00 or pro rated share of the death benefit of the University of Regina pension plan on the same percentage as set out above with the remaining share of the Respondent to be paid to his estate; (g) In the event that either party requires further clarification of the intentions of the parties with respect to the division of the University of Regina pension plan, either party hereto hereby has leave to apply to this Honourable Court for further directions. Russell Zacharuk retired from the University ofRegina effective June 30, 1993. He elected to receive monthly payments for life with guaranteed period of 15 years. As result, Jean Zacharuk has been receiving monthly payments from July 1, 1993, of $1,543.13 which is 40% of the total pension. Russell Zacharuk receives $2,314.69, or 60% of the total pension payable. Jean Zacharuk would like to receive her vestedinterest as a lump sum benefit. Russell Zacharuk does not consent to this. He perceives the pension plan arrangement to be something of tontine. Russell Zacharuk is 65 years old now and Jean Zacharuk turns 65 this year. Based on a comparative historyof their two families, Russell Zacharuk expects to outlive hisformer wife and on her death he expects thereby to regain thethen remainder of the pension asset. The parties apply for "a further clarification oftheir intentions". The court prefers to treat the application as one for an order interpreting the previous order, and consequential declarations and directions. Paragraph 14(a) provides that Jean Zacharuk is to receive "a vested interest in the pension to the extent described in this order". The order provided for vesting to the applicable extent, depending on future event, namely, the date of his retirement or the date of his death if it occurred before his retirement. His retirement was merely the pivotal event which determined which paragraph was applicable. Thereafter, matters were and are beyond his control. The provision for the monthly payments in clause 14(a) is merely direction to the University of Regina, and was not and is not intended to define the form of payment or restrict or limit the vesting. The following orders, declarations and directions are granted: 1.Under clause is 14(a), the applicable clause, the applicant received vested interest. 2.By electing retirement at "the normal retirement age of June 30, 1993" the pension was vested in Jean Zacharuk to the extent of 40% under paragraph 14(b). 3.This interpretation of clause 14(a) is supported by clause 14(b) which refers to "the share of the pension to be received by the applicant". 4.The University of Regina is to make monthly payments to Jean Zacharuk of her vested share. Whether this is converted to lump sum payment or continues as monthly payments is exclusively the concern of the University of Regina and Jean Zacharuk. 5.For greater certainty, it is hereby declared that: (a)The share vested in Jean Zacharuk is not now in any way under the control of Russell Zacharuk. (b)The share vested in Russell Zacharuk is not now in any way under the control of Jean Zacharuk. (c)Russell Zacharuk is not beneficiary of her share in the plan to hold otherwise would be to deprive her of an important attribute of ownership of her vested share and her vested interest on her death would not become his property under the consent order. (d)Jean Zacharuk is not beneficiary of his share for the same reasons. (e)The order of December 19, 1985, does not contemplate joint ownership or any implied right of survivorship. Accordingly, the 40% share, having vested in JeanZacharuk, is a share she may deal with without reference to,or the consent of, Russell Zacharuk. This order shall not be acted on until the expiration of 15 days, and not then if there shall be an appeal. Because the parties contemplated the need to return to court for further directions, the successful party will have costs, but they are hereby fixed at $300.00.
The parties divided their matrimonial property in 1985 by agreement as confirmed in a consent order. The order provided that when the husband retired, the wife would receive, as her vested share of his pension, 40% of his benefit. The order also provided that the parties could apply for further directions as necessary. After the husband's retirement, the wife sought to receive her share of the pension from the employer as a lump sum. The husband objected, claiming that he was entitled to any remaining benefit from her share in the event she should predecease him. The wife applied for directions. HELD: The wife is entitled to her share of the pension in any form permitted by the terms of the pension plan. She is also entitled to leave her interest in the pension to a named beneficiary, without reference to or the consent of the husband.