This was an appeal by the wife from an order dividing the parties' assets. The parties cohabited for 10 years, and were married for 8 of those years. They separated in 1988. The husband had a federal government pension from the military which he had contributed to for 33 years - 16 of those before the parties cohabited, and 7 after the separation. The trial judge credited the wife with 50% of the value of the pension benefits earned during the cohabitation. The wife claimed that she was entitled to half the pension benefits from the beginning of the contributions until the separation, a total of 26 years. The husband's monthly pension was $2,200. The wife's share was $312 per month. The wife was employed as a provincial civil servant. She earned $25,000 per year, and had contributed to a pension since 1988. The cashed-in value of her pension, earned prior to the cohabitation, was converted to the joint use of the parties when they purchased their matrimonial home. The wife resigned from her employment in 1987. She received her pension benefits of $2,900, and used them as matrimonial funds. The trial judge found that the wife made a lesser contribution to the marriage due to her alcoholism. This problem caused her to work sporadically, while the husband was continuously employed. The wife claimed that the trial judge erred because she did not consider the pre-cohabitation pension that she brought into the marriage. She argued that it was unfair that the husband was entitled to keep his pre-cohabitation pension benefits when she had shared her funds with the husband.
- Does s. 13 of the Matrimonial Property Act apply, or should the pre-cohabitation pension have been divided evenly under s. 12?
Roscoe, writing for the court, held it would be unconscionable to split the pension benefits of the husband as the wife requested. While recognizing that the pre-cohabitation pension was matrimonial property and the presumption of an even split under s. 12 of the Matrimonial Property Act, s. 13 gives a number of exceptions which permit a judge to exercise their discretion to order an uneven division. Chief Justice Glube had made the following findings of fact:
- The wife was an alcoholic and between the years of 1983-1988 was "unsuccessful in maintaining sobriety"
- The parties had a bad relationship due to the alcohol use of both parties
- Neither party was free from blame in the breakup of the marriage
Based on the wife's alcoholism and sporadic employment, she made a reasonable inference that the wife's contribution to the marriage was less than normal and that an equal division would be unfair. Finding no error in the findings of the trial judge, Roscoe dismissed the appeal without costs.
Pension contributions, even those earned prior to marriage, are included as matrimonial property and entitled to equal division unless the spouse seeking unequal division can show that equal division would be unconscionable or unfair under s. 13.