Family law in Canada: Sharing a work pension after divorce

On behalf of Gary Kirk of Kirk Montoute LLP posted in Family Law on Tuesday, April 10, 2018.

When a couple who has been married or cohabiting for many years decides to call it quits, they may not be aware that employment related pensions form a potentially divisible asset, whether under the Matrimonial Property Act (Alberta) or the law of constructive trust and joint family venture. Pensions can be difficult to value, depending on whether or not they are defined benefit or defined contribution pension. It may be necessary to retain an actuary to provide a range of hypothetical values for a pension. That range may vary significantly depending on the assumptions used, e.g., the date of retirement, anticipated increases in salary and statistical mortality rate.

In non-married relationships, the end date of cohabitation usually forms the end date for the period of joint accrual. Under the Matrimonial Property Act, property is valued as of the date of trial. This can often be years after the date of separation, during which the value of the pension can increase significantly. However, the last several years have seen a trend in the Alberta courts to use the date of separation as the end date for the period of joint accrual for married parties, having regard to the factors listed under “section 8 factors” of the Act.

There are many issues that can come into play regarding family law and a divorce situation. A lawyer in Canada may be able to assist in helping his or her clients secure other help such as providing the names of financial advisers. In addition, a lawyer might be able to answer any questions pertaining to the legalities of property division and divorce.

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