Among other things, the budget bill re-introduced
changes to the Pension Benefits Act (PBA) to address the
October 31, 2012 decision of the Ontario Court of Appeal
inCarrigan v. Carrigan
Ontario Court of Appeal Decision
In a previous blog post, we set out in detail the
implications of the Carrigan case, which essentially established a
new priority scheme for the payment of pre-retirement death
benefits, and by extension joint-and-survivor benefits, under the
In a nutshell, the Court of Appeal held that where a pension
plan member died prior to retirement, even if the member had a
"common law" spouse on the date of death, that spouse
would not be entitled to receive the pre-retirement death benefits
if the member had previously been married, and was separated from
but never divorced a previous spouse. (The former spouse was also
not entitled to the death benefits; instead, they would be payable
to the member's named beneficiary.)
Prior to the Carrigan decision, virtually all pension
practitioners and pension administrators interpreted the PBA as
requiring payment of the death benefit to the member's common
law spouse in this situation.
PBA Amendments Now In Force
Changes to s. 48 of the PBA clarify that in circumstances where
a pension plan member is legally married to a spouse from whom he
or she is separated, is living with a new spouse in a common law
conjugal relationship, and dies prior to retirement, the common law
spouse will be entitled to the pre-retirement death benefit.
Amendments to s. 48 of the PBA also provide a discharge to any
pension plan administrator who made a payment to the common law
spouse in such circumstances, if the payment was made prior to
October 31, 2012, which is the date the Carrigan decision was
rendered by the Ontario Court of Appeal. No discharge is available
if, after that date and prior to July 24, 2014 (the date the PBA
amendments came into force), a payment was made to the common law
spouse in such circumstances. During that time, administrators
should have been making payments in accordance with the decision in
Similar amendments to s. 44 of the PBA clarify that where a
pension plan member is legally married to a spouse from whom he or
she is separated, is living with a new spouse in a common law
conjugal relationship, and the plan member commences a pension, the
pension must be paid in a joint-and-survivor form (with the
survivor pension payable to the common law spouse should he or she
survive the member), unless the member and the common law spouse
waive this form of pension. A discharge is also available under s.
44, where a pension plan administrator paid or is paying a joint
and survivor pension that commenced prior to the effective date of
the amendment, the member had a married spouse from whom he or she
had separated and also had a common law spouse, and the common law
spouse is the spouse entitled (or potentially entitled) to the
It was widely believed that the interpretation of the PBA in
Carrigan was unfair to common law spouses of pension plan members,
since it led to their disentitlement to death benefits where the
pension plan member had not divorced a former spouse, even if the
member had separated from the former spouse years or even decades
prior to death. The PBA amendments passed in the 2014 budget bill
restore the entitlement of common law spouses in such
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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