A Division of Pension Assets Based on the Period of Cohabitation, Not Marriage
Elliston v. Elliston, 2015 BCCA 274
This recent case from the B.C. Court of Appeal upheld an
earlier decision where the trial judge elected to divide a pension in a divorce
proceeding based not on the period of marriage, but on the period of
cohabitation.
The parties began cohabiting in
1992, but didn’t marry until 2008 and eventually separated in 2012. The
Appellant husband was a member of the Canadian Armed Forces and over the course
of their period of cohabitation and marriage the two moved around the country a
number of times in order to accommodate his career. The Respondent wife had
comparatively small earnings, partly as a result of a workplace injury early in
their relationship that resulted in her receiving workplace compensation
benefits.
Both the lower court and the
Court of Appeal noted that the division of a military pension is performed
subject to a number of statutes, including portions of the B.C. Family Relations
Act, the Pension Benefits Division Act, and the Division of Pensions Regulation
(another B.C. statute). The Courts found that through the interplay of the
relevant sections of these acts, a military pension is to be divided based on
the couples’ period of cohabitation unless doing so would be unfair, having
regard to a number of factors.
The Court found that the onus was
on the Appellant husband, “to establish that an equal division based on the
entire period of cohabitation would be unfair to him.” At trial, the judge
found as a fact that the respondent wife did contribute to the pension and that
there was a clear evidentiary basis to construe her support of her husband’s
advancing career as a contribution to the pension, a family asset.
