Toronto Star

Saturday, July 10, 1999

Divorced man wins lion's share of cash in pension ruling

By Edison Stewart
Toronto Star Ottawa Bureau

OTTAWA - In what experts say is a major victory for men, the Supreme Court of Canada has dramatically slashed an Ottawa woman's share of her former husband's pension.

The court threw out the accounting method used by lower courts and effectively reduced the amount to be split by the couple to $151,480 from $372,041.

The precedent will affect divorcing couples throughout Ontario, experts said.

``The big winners are members of the pension plan,'' said Mel Norton, a Toronto actuary and senior vice-president of Aon Consulting. The big losers, he added, are their spouses. ``I am flabbergasted. I am just absolutely amazed,'' he said.

But William Sammon, lawyer for Theodore Best, the winner in yesterday's decision, called it ``a win . . . for fairness in valuing pensions.''

The judgment is not retroactive, and won't apply to existing divorces unless the terms are already under appeal, he said.

At issue was a long-standing dispute between Best and his former wife, Marlene Best, who divorced in 1989. Best, now 64, retired in 1996 after serving as an Ottawa school principal and school trustee. His pension was worth $424,912.

The high court had to decide what portion of the pension should be divided as a family asset, given that Theodore Best had paid into the plan for 33 years but was married to Marlene Best for only 12 years.

The court noted that under the pro rata method favoured by Best, the pension increased at a constant rate over time. The value-added method preferred by his ex-wife saw the pension grow slowly at first then more quickly as earnings compounded.

Earlier court rulings used the value-added method to calculate that only $52,871 of the pension's value was accumulated before the Bests married.

But in an 8-1 decision written by Justice Jack Major, the Supreme Court said the pro rata method best indicated how the pension's value varied. Division of pensions in Ontario will now depend more on the length of a marriage than on how long the fund has been building.

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