On October 31, 2012, the Ontario Court of Appeal released its decision in Carrigan v. Carrigan Estate . The case considered the rights of spouses to pre-retirement death benefit under section 48 of the PBA. In denying the benefit to a common law spouse (a person who is not legally married to a plan member but qualifies as a spouse under the definition in section 1 of the PBA) who was living with the member at the date of death, the Court gave an interpretation which was unexpected and inconsistent with how section 48 had been previously administered. If the decision stands it may also create uncertainty about the interpretation of other spousal rights provisions in the PBA.
Application for leave to appeal to the Supreme Court of Canada has been filed by the common law spouse. Because of its implications, the Deputy Superintendent has filed a letter Size: ## kb in support of the Leave Application. More information about the case can be found in the letter.
FSCO is awaiting the outcome of this application, and if leave is granted, the ultimate view of the Supreme of Canada.
The decision affects members or former members of a pension plan who:
- have not started receiving a pension;
- are legally married to a person who they are living separate and apart from; and
- are living with a person who qualifies as a common law spouse under the PBA.
Members or former members who are affected by the decision and who want their common law spouse to be the beneficiary of the pre-retirement death benefits may file a current beneficiary designation with the plan administrator naming the common law spouse as beneficiary. All members and former members should consider obtaining legal advice for estate planning matters.
Pension plan administrators may also wish to seek legal advice on the implications of the Carrigan decision pending further appeal.