Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Closed Thread
 
LinkBack Thread Tools
  #1 (permalink)  
Old 02-22-2013, 08:37 PM
Junior Member
 
Join Date: Feb 2013
Posts: 22
Vabadus is on a distinguished road
Default

I am writing on behalf of an acquaintance, who is extremely busy at the moment and, in any case, struggles with paperwork and the complicated legalities of divorce.

The husband (let's call him H) is a Canadian citizen, and the wife (let's call her W) is had dual British and Canadian citizenship, and is now a resident of Great Britain. They were married in St Lucia in 1990, and separated very amicably in 2011. They lived in the province of Ontario for the duration of the marriage, and W returned to the UK upon the separation. They have one adult daughter in Canada. Upon separation, the marital home was sold and the assets split, and H pays W £500 (GBP) in spousal maintenance on a monthly basis until W co-habits with a new partner, as outlined in their Separation Agreement. Both parties remain beneficiaries of one another's life insurance policies (both worth $250,000 (CAD)). W will withdraw most of her Canadian pension to contribute towards a mortgage on her new home in England, so H does not stand to inherit anything; H is happy to keep W as the beneficiary of his pension, as both parties have decided resolutely against splitting the pension at this stage, as it would drive H out of his new home and, in any case, they agreed that it would be unfair for W to take a hefty chunk of H's hard-earned pension.

Now, the former couple has started to discuss a divorce. The problem that has arisen is that W will not be entitled to H's pension if they divorce. Is it legally possible for H to still name W as the beneficiary of his OMERS pension if they divorce? Could H still name W as the beneficiary of his OMERS pension if he later remarries? I have done a lot of searching, and there seems to be no mention of whether a pension holder can willingly name his/her ex-spouse as beneficiary.

In the event that H is not legally permitted to name W as his beneficiary upon divorce, both parties would be happy to remain separated, rather than divorced, if it is easier. H would be the petitioner of the divorce, and is worried about the costs, which he has estimated as around $8,000. H is also religious, so in some ways a separation is preferable, although he would not object to divorcing W if W asks for this.

There are further issues, however. Their Separation Agreement, which was drawn up in Canada, is not legally enforceable in the UK. English courts may indeed take such an Agreement into consideration when dealing with finances upon divorce, as it is a good indicator of both parties' agreed intentions, but they are not bound by it and could throw it out without an issue. It is not valid by itself. On the other hand, English law has a process of legal separation called a Judicial Separation, which is rarely sought these days, but which is very similar to a divorce in its practicalities (it automatically negates provision for the estranged spouse from a will, for example, just as divorce does). The benefit of a judicial separation is a continued entitlement to a survivor's pension. A judicial separation would cost just under £1,000 (GBP) (roughly $1,600 (CAD), which is much less than a divorce). There is, however, no such concept of legal separation in Canadian law, which is another obstacle.

Now, I am vaguely aware of something called a conflict of laws (lex fori, lex causae, lex loci contractus, and so on), which arises when dealing with an international or interjurisdictional case. If it is not possible for H to keep W as his pension beneficiary following a divorce, would it be possible for Canadian lawyers to force the English courts to recognize the Separation Agreement? Alternatively, would it be possible for the UK lawyers to force the Canadian courts to recognize an English judicial separation? Which of the two would be preferable (I am assuming the first option would be quicker and easier, as a Canadian Separation Agreement has already been created and the pension issue in question relates to Ontario, not Britain)? I am aware than maybe an experienced Notary Public would be better disposed to answer this. How I go about advising my acquaintance will depend, first and foremost, on whether W will still be entitled to a survivor's pension upon divorce if H specifies so.

Sorry for the length of the post, but I thought it necessary to get absolutely everything relevant written down. All help will be much, much appreciated. Many thanks in advance.

Last edited by Mess; 02-24-2013 at 08:47 AM.
  #2 (permalink)  
Old 02-22-2013, 08:44 PM
Senior Member
 
Join Date: May 2011
Location: Ontario
Posts: 3,035
Berner_Faith will become famous soon enough
Default

I can't help you with much... but I am pretty sure you can list anyone for a beneficiary, as that is totally up to the policy holder. As for the divorce, if there is no issues to solve, a divorce is under $500 cnd. It is simply filing paperwork, serving and filing more paperwork.

I am not sure if you will find a lot of helpful information here, as I am unsure many of these posters have been through this.. however, seeing as they were MARRIED in St. Lucia (UK I assume), the divorce would have to happen in St. Lucia.... no? Therefore, if it is cheaper to go the way the UK government does, why not just do it that way? Your friend should speak to a lawyer regarding this, as it proves to be a complicated manner.
  #3 (permalink)  
Old 02-22-2013, 08:52 PM
Rioe's Avatar
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,213
Rioe will become famous soon enough
Default

I don't understand why splitting the pension would drive H out of his home. All he has to do is find out what the increase in the pension was for the duration of the marriage, divide that number in half, and instruct the pension administrator to remove that amount from his pension and deposit into the locked-in pension plan of W's choice. Then neither of them has to worry about beneficiaries, or divorce, or UK laws, etc.

If they both agree that it's unfair for W to take a hefty chunk, then they can choose to split off a lesser amount.

From the sounds of it, they are both banking on the other dying first. The above way lets them both move on with their lives, looking forward to the pension their marriage efforts let them both save for.
  #4 (permalink)  
Old 02-22-2013, 09:52 PM
Junior Member
 
Join Date: Feb 2013
Posts: 22
Vabadus is on a distinguished road
Default

Thanks, Rioe.

What you said provides new information on pension I didn't previously know about. All I know is that immediately after the separation, H was worried to the point of illness that W would take half his pension, which she has promised repeatedly not to do in order to maintain their amicable relationship and to be fair to him. He said that he would have to downsize, and is only able to rent, rather than buy the condo he now lives in. I also know that H effectively 'bought out' his first wife from his pension with a lump sum payment when they were divorced back in the 1980s.

I understand that W is entitled to get more in spousal support than she is currently getting, but that would mean dipping into H's pension. She is comfortable with the current arrangement, however, and would probably prefer to receive the survivor's pension upon H's death (God forbid that happens any time soon, but we all have to go some day). It has also been a nightmare trying to extract W's OMERS pension early and get it transferred to the UK, plus there is a huge loss in exchange rates. I will mention what you said to her though, so I'm grateful for that.

It might be worth mentioning that H is a semi-retired police officer. I'm English, so I know very little about Canadian pensions, but perhaps this is a private pension in addition to an OMERS one?! I know here in Britain widow(er)s of Armed Forces members have additional survivor benefits entitlements than surviving spouses of those who had 'normal' jobs; this might be the same in Canada re. the police force? Forgive my ignorance on this — I'm just throwing out possible ideas.

H and W now have no joint assets to divide. Their only financial ties are: the monthly spousal maintenance that will continue until W co-habits with another party; the life insurances; and H's pension. If this makes a divorce relatively straightforward and inexpensive, I will ensure that W tells H so, as he seems to think this will cost him in the region of $8,000.

It did also hit me that maybe no further legal action at all is required: as the pension in question is 'domiciled' (for want of a better word) in Canada, then surely the Canadian Separation Agreement, which ensures that W will remain the beneficiary of H's pension plan, is sufficient? H is now in a new relationship, so we have to bear in mind possible remarriage in the future, and any effect that could have on H and W's Separation Agreement.
  #5 (permalink)  
Old 02-22-2013, 10:06 PM
Rioe's Avatar
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,213
Rioe will become famous soon enough
Default

Kind of weird that your post with the question has vanished. Makes it hard for anyone else to chime in with answers!

So after his first breakup, he kept his pension intact by paying out the equivalent in assets, and he thought this was what would happen again? No, the pension can usually be split into two pensions, one for each, though I don't know what international law would do to it.

If H is in a new relationship, it's probably best for all that the pension be split so he doesn't have any ongoing connection with W any more at all. Then he can be free to make his new spouse his beneficiary.
  #6 (permalink)  
Old 02-22-2013, 11:21 PM
Junior Member
 
Join Date: Feb 2013
Posts: 22
Vabadus is on a distinguished road
Default

OK, your info is very handy — thanks a lot! I shall mention this to W. There is, of course, no guarantee that they'll prefer to do this, which is why I am trying to get as much info as possible on all eventualities to let H and W decide what's best.

I mean, would splitting H's pension mean that W would no longer get spousal maintenance? I am quite confident that in that instance, W would sooner have the monthly payments (which, as it goes, is not preferred by English courts unless there are dependent children involved — here they generally think it is better to issue a Clean Break Order, which basically severs all financial ties between the former spouses upon divorce, and is impossible to revoke unless fraud has taken place, thus guarding the better off spouse from future financial claims from a greedy ex!). Would there have to be a divorce for the pension to be split, or would a separation suffice?

(P.S. it is very weird about my vanishing post! As I haven't used the forum before, I actually assumed the first post was only invisible to me as I posted it in the first place. I will contact the mods about this.)
  #7 (permalink)  
Old 02-23-2013, 10:07 AM
Junior Member
 
Join Date: Feb 2013
Posts: 22
Vabadus is on a distinguished road
Default

Is it possible to contact the mods directly about the vanishing post?
  #8 (permalink)  
Old 02-23-2013, 10:10 AM
Senior Member
 
Join Date: Dec 2006
Location: Kitchener Ontario
Posts: 5,201
standing on the sidelines is on a distinguished road
Default

Quote:
Originally Posted by Rioe View Post
Kind of weird that your post with the question has vanished. Makes it hard for anyone else to chime in with answers!
.
K so it just isnt my computer.
  #9 (permalink)  
Old 02-23-2013, 11:14 AM
Junior Member
 
Join Date: Feb 2013
Posts: 22
Vabadus is on a distinguished road
Default

So strange. I did save a first draft of my initial post though, so here it is again:

Quote:
I am writing on behalf of an acquaintance, who is extremely busy at this moment and, in any case, struggles with paperwork and the complicated legalities of divorce.

The husband (let's call him H) is a Canadian citizen, and the wife (let's call her W) has dual British and Canadian citizenship, and is now a resident of Great Britain. They were married in St Lucia in 1990, and separated very amicably in 2011. They lived in the province of Ontario for the duration of the marriage, and W returned to the UK upon the separation. They have one adult daughter in Canada. Upon separation, the marital home was sold and the assets split, and H pays W £500 (GBP) in spousal maintenance on a monthly basis until W co-habits with a new partner, as outlined in their Separation Agreement. Both parties remain beneficiaries of one another's life insurance policies (both worth $250,000 (CAD)). W will withdraw most of her Canadian pension to contribute towards a mortgage on her new home in England, so H does not stand to inherit anything; H is happy to keep W as the beneficiary of his pension, as both parties have decided resolutely against splitting the pension at this stage, as it would drive H out of his new home and, in any case, it is unfair that W should take a hefty chunk of H's hard-earned pension.

Now, the former couple have started to discuss a divorce. The problem that has arisen is that W will not be entitled to H's pension if they divorce. Is it legally possible for H to still name W as the beneficiary of his OMERS pension if they divorce? Could H still name W as the beneficiary of his OMERS pension if he later remarries? I have done a lot of searching, and there seems to be no mention of whether a pension holder can willingly name his/her ex-spouse as beneficiary.

In the event that H is not legally permitted to name W as his beneficiary upon divorce, both parties would be happy to remain separated, rather than divorced, if it is easier. H would be the petitioner and is worried about the cost of divorce, which would be around $8,000. H is also religious, so in some ways a separation is preferable, although he would not object to divorcing W if W would prefer this.

There are further issues, however. Their Separation Agreement, which was drawn up in Canada, is NOT legally enforceable in the UK. English courts may indeed take such an Agreement into consideration when dealing with finances upon divorce as it is a good indicator of both parties' agreed intentions, but they are not bound by it and could throw it out without an issue. On the other hand, English law has a legal separation called a Judicial Separation, which is rarely sought these days, but which is very similar to a divorce in its practicalities (it automatically cuts out the estranged spouse from a will, just as divorce does). The benefit of a Judicial Separation is a continued entitlement to a survivor's pension. A judicial separation would cost just under £1,000 (roughly $1,600, which is much less than a divorce). There is, however, no such concept of legal separation in Canadian law, which is another obstacle.

Now, I am vaguely aware of something called a conflict of laws (lex fori, lex causae, lex loci contractus, and so on), which arises when dealing with two different jurisdictions. If it is not possible for H to keep W as his pension beneficiary following a divorce, would it be possible for Canadian lawyers to force the English courts to recognize the Separation Agreement, or for the UK lawyers to force the Canadian courts to recognize a English judicial separation, should this be preferable? I assume the first option would make more sense, as there is already a Separation Agreement in force in Canada, and the pension in question is Canadian. I am aware that maybe only an experienced Notary Public would be able to answer this.

Sorry for the long post, but I thought it necessary to get absolutely everything relevant written down. All help will be much appreciated.
  #10 (permalink)  
Old 02-23-2013, 12:43 PM
Rioe's Avatar
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,213
Rioe will become famous soon enough
Default

Quote:
Originally Posted by Vabadus View Post
I mean, would splitting H's pension mean that W would no longer get spousal maintenance?
Pension splitting is part of equalization, the division of assets, and is separate from spousal support. Spousal support is by agreement that the ex with the lower income should be supported by the ex with the better income for a period of time after the break up, usually as a bolster while they become self-sufficient, or as compensation for career damage during the marriage.

So splitting the pension would not affect any ongoing spousal support agreement.

Quote:
Originally Posted by Vabadus View Post
I am quite confident that in that instance, W would sooner have the monthly payments (which, as it goes, is not preferred by English courts unless there are dependent children involved — here they generally think it is better to issue a Clean Break Order, which basically severs all financial ties between the former spouses upon divorce, and is impossible to revoke unless fraud has taken place, thus guarding the better off spouse from future financial claims from a greedy ex!). Would there have to be a divorce for the pension to be split, or would a separation suffice?
We don't have Clean Break Order in Canada (though it sounds ideal!), but splitting the pension would be part of severing the financial ties.

A separation agreement is sufficient, the divorce can come later or never, as the parties wish.
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On



All times are GMT -4. The time now is 09:49 PM.