Pension split

[Love and Theft]

I will try to keep this as concise as possible. It has been twelve years since my divorce. I am sixty-two years of age we lived together for sixteen years, married for five. The Separation Agreement itself, in my opinion, was never just or equitable. Like others, I signed it to get it over with. Nothing was really negotiated, and from the beginning it had the appearance that these would be ‘gifts’ or concessions made by my ex. If and it was a big one I would agree to all of the demands presented. One demand made was for five years of child support for our two daughters paid in advance. This of course was an impossibility for me. The solution given was to deduct that amount from my equity in the home. I resisted this on the grounds that this support would be non-existent as there would be no money coming in. I was agreeable however to monthly child support. The offer was refused. It was very apparent the scheme was to reduce my equity for my ex’s purchase in order to obtain possession and clear title. There were many other insidious aspects to the agreement which I will not detail but suffice to say after nearly two years I was worn out. During this time whilst living in my camper I was informed that I had lost over nine thousand dollars because the housing market had de-valued, although this was never proven. I was also told I was on the hook for a loan I had co-signed to build a store for my ex in the bottom section of the house which had since become a rental. I finally decided to just go to court. Broke and discouraged I then was informed by my attorney this could take another year and approximnately ten thousand dollars. Win or lose! I succumbed, and signed. In going over this ‘agreement’ recently, I examined the section on pensions. Much of it is taken up with details on how neither party will apply for a split of pensions regarding injuctions, etc. I should point out here my attorney was very negligent in explaining my rights in all of this and when asked about pensions made it appear it was a huge process involving actuaries and much expense. I was not aware and was not made aware the process is automatic upon application by either party. Back to the pension issue: one line confuses me. Leading up to this it states:
‘An application for division of Canada Pension or Employment Pension by either party shall be a breach of this Agreement entitling the other party to seek:

• a permanent and interlocutory injunction to prevent the application from proceeding;
• damages in the amount, if any, by which Canada Pension or Employment Pension is in his or her favour is reduced as a result of the application for division; and
• the party applying for division shall indemnify the other for all legal costs and disbursement incurred to oppose the application for division.

And, now this:
*****, if she should receive any monies and/or benefits from Canada Pension or Employment Pension, shall hold said monies and/or benefits in trust for ****** and shall:
a. be a trustee for ****** of any such benefits received by ****** under the pension plan; and
b. not do or omit to do any act to the prejudice of the interest of ******.
This line confuses me and I would not split hairs, nor am I trying to be vindictive however another attorney upon examining the agreement has said it is one of the most lopsided they have seen. The fact that so much of the entire agreement in my opinion was based on fraud and deception has lead me to ask for assistance with this aspect. I’m not clear on it but, as it stands, this line seems to contradict and possibly nullify the statements preceding. Leaving pension split in question? That is my hope. It is then my request from someone more knowledgeable to give their interpretation. In doing so, perhaps I can right some of the wrongs which I have had to live with. Because I do not have savings and I was treated unjustly. I only seek something more equitable. Thank you for your assistance.

 

[arabian]

Sounds totally wild. What sort of an ahole incompetent lawyer did you have?

I'd probably just apply for the pension split and let the other party sue me - particularly if I didn't have anything. All depends upon your personal situation. Some people grab the cash at time of divorce with little thought of future (pension) and it comes back to haunt them. You did have independent legal advice, albeit poor direction.

This, of course, is just my personal opinion and please seek some legal counsel on this matter. I thought splitting of government pension was one's right. While I know you have to apply to do it, I think this equates with someone holding a gun to your head.

 

[DowntroddenDad]

From some quick reading on the federal websites, it depends on the province. In some provinces, they have laws which will enforce a "no split" provision for CPP(Alberta), in others like Ontario, doesn't matter what your agreement says, you can apply for a split.

 

[Love and Theft]

The divorce took place in B.C. Therefore I'm not sure on the validity of my query can an attorney out there help with this? The comments are correct though...I did not have competent representation basically, I paid someone $200/hr. to listen to me. They were more interested in billable hours. Than informing me of my rights. I was aware of my obligations. And did my best to meet them.

 

[billm]

There are three situations I can think of:

1. You made an agreement (to which you had legal advice) while knowing all the facts. You should stick to that agreement.

or

2. The facts were misrepresented by the other party so it doesn't matter that you signed it.

or

3. The agreement was grossly unreasonable so it doesn't matter that you signed it.


I think you are in situation 1.

I'm not sure I agree with situation 3 - if someone is fully aware of what they are signing and they are of sound mind, they should stick to the agreement.

 

[Love and Theft]

Thanks for your response. I understand what you're saying. I was, I imagine, of sound mind. I also understood what I was signing, although did not agree with it I'm sure many also just get worn out as I was. The issue or issues here are: my attorney did not seem to be aware of the nature of pension splits either through nonchalance, or ignorance eg. they are most often automatic and do not require huge expenses other than filing fees (these are all things I have learned on my own). I learned many things in fact by reading The Family Law Act albeit much later. Live and learn as they say.
The other more pertinent issue is the wording. It appears to me the 2nd statement should not be included if a non-pension split is in the agreement. It is worded in such a way that it does not say 'if either party attempts a pension split' those funds will be held in trust. It is a separate line. It does refer it says: 'if they receive any monies and/or benefits from Canada Pension or Employment Pension, shall hold said monies and/or benefits in trust'. To be perfectly honest, I was a party to the non-pension split portion of the agreement. But as I have said, so much of the agreement was patently unfair and inequitable I have no reservations using the wording myself (or mis-wording) in order to gain at a later time somewhat of a more equitable arrangement. The girls have now left home (which they both did in a matter of a year after the agreement- although there has been no accounting of 'missing' years of child support- which of course were paid in advance). It is now MY future I am concerned about. If it can't be done so be it. But it would be fair. Everyone thanks for your input.

 

[OrleansLawyer]

3. The agreement was grossly unreasonable so it doesn't matter that you signed it.

This can be grounds for an agreement to be tossed out, except OP signed the agreement some years ago (twelve years since divorce). First counter argument would be that, if the agreement truly were unfair, it would have been addressed years ago.

The divorce took place in B.C.

If BC has the equivalent of a lawyer referral service, this may assist you with the local laws.

You may also wish to break your posts into paragraphs. One paragraph per point is a comfortable rule of thumb. If uncertain, use at least one paragraph for every three fingers of text that appear on your screen.

 

[Love and Theft]

Thanks Orleans for the input.
It was indeed a few years ago this agreement took place. I guess many people are irritated by their agreements and you either live with it, as I have done, or make an attempt at rectifying a portion of it.
My only advice to anyone is to not sign anything. Until things have settled down. And... you're capable of knowing your rights. And above all, willing to stand up for them.
The property has since been re-appraised and it is worth a substantial amount of money.
And
The bogus child support has never appeared over these years.
The reason for my question was the wording of a portion regarding pensions, as it seems contradictory.
I have heard in some jurisdictions the wording of an agreement with regard to a non split of pensions is unenforceable.
I'm not sure about British Columbia I do know the law is about to be amended in certain aspects later this year. Whether this involves pensions I can't be sure.
It for me of course is a shot in the dark and I believe, as you say, it would be best to run it by a qualified attorney to see what their interpretation is.
Thanks

ps these forums seem to be wonderful support group glad they exist.