Law Times

LAW TIMES / JUNE 23, 2008 FOCUS Input sought on pension law reform BY GRETCHEN DRUMMIE Law Times the area of the division of pen- sions when a marriage fails should be reformed. The commission also issued a consultation paper last month summarizing current prob- P ublic input is being sought by the Law Commission of Ontario on how the law in lems with this area of law, and two main approaches were identified as possible solutions. "We're looking for the views of the public, including the stakehold- ers on what is the best approach to use," John Hill, Ministry of the Attorney General LCO counsel in residence tells Law Times. Currently the Pension Benefit Act prevents divorcing spouses from getting money out of their pension plans before retirement. Hill says the two approaches identified as possible solutions are "immediate" and "deferred" methods. Under the immediate settlement, the parties would determine the entitlement of the non-member spouse and take that portion of money out of the plan and transfer it into a locked-in retirement arrangement, says Hill. Fisher has had 'huge' impact Continued from page 10 judges in many parts of Ontario, but not universally so," says the paper. "After Fisher, lawyers will likely argue the advisory guidelines more often, especially in those areas where the guidelines have not been much used to date. And if one of the parties argues the guidelines, then Fisher holds that the trial judge should include 'reasons explaining why the guidelines do not pro- vide an appropriate result' if the quantum is fixed outside the sug- gested range. At least one party will usually like the quantum ranges for amount and duration suggested by the advisory guide- lines so that this aspect of Fisher takes on added importance." "Fisher has had a huge impact right away on how thorough coun- sel are becoming at analyzing the guidelines," says Marta Siemi- arczuk, a family law lawyer with Borden Ladner Gervais LLP in Ottawa. She adds that she has also, in terms of the effects of Fisher, seen a "complete about-face in posi- tions taken with respect to support reviews and even time-limited sup- port. While review clauses were much more readily agreed upon in preparing settlements or separation agreements, I have now had four instances in the last few months where this was a no-go right away based on Fisher." She adds that as for time-limited support she's "seen the same thing. While previously borderline cases went the way of not limiting dura- tion of spousal support, now I am seeing a definite turn towards limit- ing it in those 'borderline' cases." "For me, as a practitioner, the biggest thing it does is it gives more weight to the spousal sup- port guidelines," says Grant Gold of McCague Peacock Borlack, McInnis & Lloyd LLP. He says he started seeing impact of the deci- sion "instantly . . . I immediately saw the effects." Meanwhile, when the final ver- sion of the guidelines comes out next month, it will "by and large be no surprise," says the Roger- son/Thompson paper. "Much of the basic structure of the guide- lines remains the same. The doc- ument has been rewritten and reorganized to clarify meaning, to incorporate the three years of on- the-ground experience with the guidelines and to focus attention on issues that are often ignored, such as entitlement, application, using the ranges, restructuring, exceptions and self-sufficiency." Even after the final version, the guidelines will not be legis- lated but will remain "advisory," say the authors in their paper. The two basic formulas won't be changed but there will be "some minor tweaking." And, "there will not be formulas to deal with some of the hard issues on variation and review: remarriage or repartnering of the recipient, second family obligations of the payor, or post-separation income increases for the payor." LT The deferred settlement involves the spouse who's not a plan mem- ber in effect becoming one; instead of one pension being paid out to the original member, at retirement there will be two pensions having been divided into whatever propor- tion is appropriate and each will have a stream of payments, he says. Hill adds members of the public could have other good ideas. "Concerns have [been] raised about the current state of Ontario law in this area by lawyers, judges, pension plan administers, actuaries and people who have gone through a marital breakdown," said Dr. Patricia Hughes, commission exec- utive director in a release. "There is no real dispute that Ontario should address this matter legislatively. The critical question is which approach is the most fair and appropriate." The commission said in the release the law in this area in Ontar- io is acknowledged "to be complex, confusing and fraught with difficul- ties, leading to unnecessary expense and administrative burdens." According to the commission, Family Law Services Counsel in all Courts Mediation Arbitration Tax and Pension Advice Domestic Contracts Collaborative Law † † most other Canadian provinces have adopted one of the two main approaches to reform. Hill says, however, it's not a matter of choos- ing one of the two. "If a third way makes sense we'll be considering that as well," he says. "We hope that people will give us their ideas." Hughes said that public consul- tation is vital to the commission's work and while they hope to have input from those with expertise in the area, they also welcome submis- sions from anyone who has a view on what should be done. Launched last September, the commission operates independent- ly to recommend law reform to enhance access to justice. Written submissions will be accepted until July 31, and the commission will issue a report with its findings and recommen- dations. Interested parties should e-mail pensiondivision@lco-cdo.og/ or write Law Commission Ontar- io Pension Division Consultation, Computer Methods Building, Suite 201, 4850 Keele St., Toron- to, Ont., M3J 1P3. LT Tom Bastedo Q.C.* Joanne Stewart* Bryan Smith* Samantha Chousky Daniela Ruso Susan Harris Adam Black † bastedo stewart smith BARRISTERS & SOLICITORS 180 Dundas Street West Suite 1800 Toronto, ON M5G 1Z8 Certified by the Law Society of Upper Canada as a Specialist in Family Law * Phone: (416) 595-1916 Fax: (416) 596-7538 PAGE 13 caseAlert www.canadalawbook.ca www.lawtimesnews.com CA023 (LT 1-2x5).indd 1 6/18/08 11:07:39 AM LT0623

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