Court of Appeal of Quebec

Droit de la famille — 191077

June 07, 2019

500-09-027583-186

Savard, Roy, Cotnam

Appeal from a judgment of the Superior Court granting the divorce of the parties and ruling on corollary relief. Allowed solely to correct a clerical error.

The parties were married in 1992. At the time, the husband’s contributions to his registered retirement savings plan (RRSP) totalled $12,334. In the months following the marriage, he withdrew $4,396 from his RRSP. In 2014, when they ceased sharing a community of life, his RRSP account totalled $64,377. When partitioning the RRSP, the judge subtracted $4,396 from his contributions to the RRSP before the marriage, which the husband says was an error. In addition, when the judge determined the partitionable value of the wife’s life annuity fund (LAF) – she had transferred her pension plan to a locked-in retirement account (LIRA) in 2010, then to an LAF – the judge ordered pro rata partition based on the number of years worked during the marriage. The husband argues that the judge should have ordered it partitioned according to the general rules of the Civil Code of Quebec (S.Q. 1991, c. 64) because the matter concerned a defined contribution plan.

With regard to the partition of the RRSP, the husband withdrew from amounts he had contributed before the marriage. This withdrawal does not constitute “benefits accrued during the marriage” within the meaning of art. 415 C.C.Q. What is more, because the withdrawal was concurrent with the date of the marriage, it cannot be found that this amount would in any event have generated any added value between the date of the marriage and the date the parties ceased sharing a community of life.

As for the LAF, when the wife transferred the value of her pension plan first into a LIRA and then into an LAF, the partition of accrued benefits stopped being subject to the mechanisms in the Act respecting the Government and Public Employees Retirement Plan (CQLR, c. R-10). Since the LAF is a contract under a regulatory framework, although not governed or established by the Act within the meaning of art. 426 C.C.Q., the partition should be effected according to the general rules in arts. 415 and 418 C.C.Q., which, in this case, lead to the same result. The retirement benefits accrued before the marriage are not part of the family patrimony. The pro rata calculation is also consistent with the principles underlying the creation of the family patrimony, which is based on the contributions of each party during the marriage.

*Summary by SOQUIJ
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