Mr. King sought to designate his second wife as beneficiary under his pension plan to ensure she would receive his survivor’s pension.  Mr. King’s pension administrator – OMERS – rejected his request on the basis that his first wife had not waived her rights to the survivor’s pension. 

Mr. King had entered into a separation agreement with his first wife.  The separation agreement included a term that provided Mr. King was “entitled to the sole use, ownership and benefit” of all pension plans registered in his name as of the date of separation, free of any claim or interest by his first wife.  OMERS informed Mr. King that the separation agreement did not clearly indicate that his first wife relinquished her rights to the survivor’s pension benefits.  OMERS indicated that if his first wife completed a particular form, they would be satisfied that she had relinquished her rights.  Mr. King’s first wife refused to sign the requisite form. 

Mr. King initiated an application seeking a declaration that his former wife waived her entitlement to his survivor’s pension.  In support of his application, Mr. King relied on the provisions of the parties’ separation agreement cited above, together with a further provision that they agreed to sign “any documents required to give effect to the terms and intent of the agreement.”

The Honourable Justice Cornell applied the relevant provisions of the Pension Benefits Act and dismissed Mr. King’s application.  Justice Cornell noted that given the language of the separation agreement “it is understandable that Mr. King would well believe that his former spouse had given up any interest she may have had in his survivor’s pension”.  However, section 46(1) of the Pension Benefits Act required that a prescribed form be used in order for that waiver to be valid.  Justice Cornell concluded, “Mr. King found himself in the unfortunate position of being caught in a trap for the unwary.”

King v. King (also known as Raines) et al. 2010 ONSC 6271, 103 O.R. (3d) 156-160

Samantha Nessan B.A. (Hons.), LL.B.

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