Toronto Star

Tuesday, February 16, 1999

Pension row hits top court

Case could have far-reaching effects on divorce

The Toronto Star

OTTAWA -- A dispute between a man and his ex-wife that's landed in the Supreme Court of Canada could help settle at least one aspect of division of property battles in many divorce cases.

The dispute is essentially about how a spouse's pension plan should be evaluated when a couple separates and their property must be divided between them.

The case pits two wildly different and complicated methods of calculating a spouse's pension against each other.

One method is ultimately much more costly to one partner -- in this case Ted Best of Ottawa -- than the other.

The high court, which hears the case tomorrow, has to choose the best method to assess the portion of the pension that should be divided between the two parties.

The outcome will almost certainly affect every failed marriage in Ontario in which a similar pension is involved, and could potentially affect cases elsewhere in the country.

The court could rule that one method is preferable to the other, or it could set out guidelines that must be met when a pension is being evaluated after a marriage breakdown.

"People think pensions, and they don't understand and they think it's boring, but it's really so crucial for the separating parties," said Jirina Bulger, one of Best's lawyers.

"However, I think in a very general sense the whole issue of pension upon marriage breakdown ought to be revisited by the legislation."

'The whole issue of pension...ought to be revisited'

The Ontario Family Law Act gives no direction as to how pensions should be valued and subsequently divided between a divorced couple.

At trial, the judge was faced with two competing ways to calculate the pension, although other methods exist.

One method, which the lower courts ruled for, values Best's teacher's pension at about $425,000, of which about $372,000 is attributable to the period of marriage. That method would entitle Marlene Best to nearly $148,000.

The other method, which Best is hoping to persuade the Supreme Court is the correct one, would value the pension during the marriage at about $152,000, which would entitle his ex-wife to much less.

Best contributed to his pension fund for 32 years by the time of the trial. He was married to Marlene Best for 12 years between 1976 and 1988.

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