Swan v. Canada ( Attorney General )
A-648-97
Robertson J.A.
30/10/98
10 pp.
Appeal from Trial Division decision concerning division of matrimonial property under federal pension legislation-Whether date for valuing pension benefits date of divorce or date actual division of pension benefits effected-Laurie Robichaud enlisted in Canadian Armed Forces in October 1954-Released from forces in 1973, began receiving monthly superannuation pension-He and respondent Swan married on December 17, 1960, separated on June 30, 1985-Divorce judgment dividing matrimonial property-Robichaud's superannuation pension divided in accordance with Rutherford formula which incorporates numerator equal to number of years of marriage during which spouse accumulated pensionable service-Respondent appealing division of family assets, maintenance order to British Columbia Court of Appeal-According to Court of Appeal, "triggering date" for division of family assets date of divorce-On September 30, 1994, Pension Benefits Division Act came into force, permitting division of certain federal pension plans, regardless of whether part of support order-Respondent applied to Directorate of Pay Services, Canadian Armed Forces Pension Inquiries, for division of Robichaud's pension benefits under Act, s. 4-Division of Robichaud's pension benefits effected by transferring $33,164.84 to respondent's registered retirement savings plan-Respondent seeking judicial review of Directorate's decision-Motions Judge ruling in favour of respondent, remitting matter back to Directorate with instructions to calculate value of pension benefits in accordance with Rutherford formula-S. 4 making it clear divorce order incorporating division of pension benefits triggers application of Act-S. 8(3) not providing triggering mechanism for making payments out of pension funds-Nothing in Act providing order of provincial superior court regarding division, valuation of pension benefits can displace its provisions-Act, s. 11 not allowing Minister to recover from Robichaud one half of value of pension benefits which it paid to him from date of divorce to date of division effected by Directorate-S. 11 only comes into play when excess payment triggered "adjustment" under s. 8(1)(b)-Parliament not granting Minister right of recovery in respect of pension benefits already paid to Robichaud-Respondent to seek remedy against Robichaud for portion of benefits received prior to actual division and payment-Appeal allowed-Pension Benefits Division Act, S.C. 1992, c. 46, ss. 4, 8, 11.