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When a long marriage ends near or after retirement, the pension is usually the largest asset and the rules for dividing it are not the ones most people expect. Family law for Burlington, at the Halton courthouse in Milton.
Start My Enquiry →Serving Burlington and Halton Region | Halton family court, 491 Steeles Ave E, Milton | Pensions, retirement income and long marriages | Initial Assessments
Burlington has an older population than most of the Greater Toronto Area, and a steady number of separations after thirty or forty years of marriage. Those files look nothing like a separation at forty. There are rarely parenting issues, the house is usually mortgage free, and the argument is almost entirely about retirement income.
Ontario took pension valuation out of the hands of the parties in 2012. You no longer hire your own actuary as a matter of course. The plan administrator calculates the value on prescribed forms, apportions the part that accrued during the marriage, and sends a statement to both spouses. The most that can be transferred to the other spouse is half of that marriage-period value.
The rule that catches people is what happens when the pension is already being paid. If the first instalment was due on or before the valuation date, there is no lump sum transfer available at all. The pension can only be divided by dividing the monthly payments themselves, for as long as they are paid. That changes the whole shape of a settlement, because it removes the option of buying the other spouse out of the pension with the house.
And there is one thing an Ontario separation agreement simply cannot do, which we set out below, because people sign agreements every year that purport to do it.
The courthouse at 2021 Plains Road East in Burlington hears criminal matters and Small Claims. It hears no family matters. Every Halton family case is heard at 491 Steeles Avenue East in Milton, and because Halton is not a Family Court site, two different courts sit there and hear different parts of family law.
Divorce, equalization of net family property, the matrimonial home, and any parenting or support claim brought together with a divorce or property claim. Pension division orders and business valuation disputes are heard here.
Parenting orders, child and spousal support, restraining orders and child protection, where no divorce and no property claim is being made. It cannot grant a divorce and it cannot divide property, which is what makes the choice of court a real decision in Halton rather than a formality.
A long marriage ending is a financial problem before it is a legal one, and we work in that order.
Either spouse applies to the plan administrator on the prescribed form. The administrator determines the value as at the family law valuation date and apportions the part attributable to the period from the date of marriage to that date. That apportioned figure is the family law value, and no more than half of it can go to the other spouse. Pension Benefits Act, sections 67.2 to 67.4. The administrator has sixty days to produce the statement once the application is complete, and a defined benefit plan may charge up to six hundred dollars for it.
Whether the pension was in pay at the valuation date changes everything. If the first instalment had not yet fallen due, a lump sum may be transferred out of the plan. If it had, no lump sum is available and the only route is an ongoing division of each monthly payment. Family Law Act, section 10.1(5). Orders and agreements that get this wrong are rejected by administrators, and the entitlement has to be expressed either as a specific amount or as a proportion of the instalment.
A further trap worth naming: after the first instalment is due, the other spouse may waive entitlement to a joint and survivor pension, and once given that waiver cannot be cancelled. Signing it away removes the income that would have continued after the member’s death. Nobody should sign that form without advice.
Even where a lump sum is available, it is not automatic. The court weighs the nature of the other assets, how much of the total net family property the pension represents, liquidity, contingent tax, and the resources each spouse will have to meet their needs in retirement. That last factor is often the strongest argument in a Burlington file.
Canada Pension Plan credits earned during the marriage are divided between the spouses. On a divorce the division is mandatory once the Minister is told about it and given the required information, and there is no time limit for applying. Where you have separated without divorcing, either of you can apply after a year apart.
Here is the part that matters, and it is the reason we raise it in the first meeting. An Ontario separation agreement cannot stop it. Federal law permits spouses to agree that no division will take place only where the province’s own law expressly allows such a clause. Ontario has never done so. Four provinces have, and Ontario is not among them. A release of Canada Pension Plan credits in an Ontario agreement is not binding on the Minister and the division will happen anyway.
That does not leave you without options, but the options are contractual rather than a waiver. Where the credit split is genuinely unfair on the facts, the answer is an indemnity or an offsetting adjustment elsewhere in the settlement, drafted so it works between the two of you even though the split itself proceeds. An agreement drafted on the assumption that a waiver will hold is an agreement that will not do what its signatories think it does.
The single most contested question in a later-life file is whether a pension already divided as property can also be counted as income for spousal support. The general answer is that it is unfair to take the benefit of the same asset twice, and support should where practicable focus on the part of the income that was not divided. But the Supreme Court of Canada allowed exceptions: where the payor can afford it, where the recipient has made reasonable efforts to use the divided assets to produce income and hardship persists anyway, and where the support is based mainly on need rather than compensation.
That protection is also narrower than people assume. It was framed around assets that liquidate as they pay out, which is what a pension does. A business or an investment that produces income without consuming itself has been treated differently, and the argument that a given asset falls on one side or the other is a real one.
Our Oakville office at 277 Lakeshore Road East is the nearest to Burlington, about fifteen minutes along the lake, and we also meet by telephone and video. Most matters qualify for a no-obligation initial assessment. If a pension is involved, bring the most recent annual statement. It is usually the document that tells us the shape of the whole file.
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