Madsen v. Madsen

Madsen v. Madsen

The court accepted uncontested evidence that claimant's counsel inadvertently referenced the wrong federal statute and that both parties intended the pension transfer to occur under the Pension Benefits Standards Act; there was no evidence the respondent instructed counsel to use the inapplicable statute and the respondent's prior conduct and documents supported application of the Pension Standards Act; accordingly paragraph 25 was rectified to substitute the Pension Benefits Standards Act for the Pension Benefits Division Act. On the Supplemental Pension the court found the parties knew Air Canada's policy would not permit direct division and that the claimant did not prove an intention...

Citation
2012 BCSC 1535
Parties
Plaintiff/claimant: Cynthia Eileen Madsen also known as Cynthia Eileen Johnston; Defendant/respondent: Tony Madsen
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
19 October 2012
Procedural Posture
Family Law Rectification of Separation Agreement and Pension Division / Chambers Summary Trial Reasons for Judgment
Outcome
Application granted in part: paragraph 25 of the separation agreement rectified to refer to the Pension Benefits Standards Act; claimant's claim for division of the Supplemental Pension dismissed; each party to bear their own costs.
Legal Topics
Rectification, Mutual Mistake, Division of Pension Benefits, Supplemental Pension, Standard of Proof for Equitable Relief
Source Language
English
Family Law Equity Contract Law Pensions Law Rectification Mutual Mistake Division of Pension Benefits Supplemental Pension +1 more

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Parties

Cynthia Eileen Madsen also known as Cynthia Eileen Johnston

Plaintiff/claimant

Tony Madsen

Defendant/respondent

Procedural Posture

Family Law Rectification of Separation Agreement and Pension Division / Chambers Summary Trial Reasons for Judgment

Legal Issues

  1. 1 Whether paragraph 25 of the separation agreement should be rectified to substitute the Pension Benefits Standards Act for the Pension Benefits Division Act
  2. 2 Whether the defendant's Supplemental Pension (RCA/SRP) was intended to be included as a divisible family asset under the agreement
  3. 3 Appropriate standard of proof for rectification (convincing proof) and application to affidavital admissions

Ratio Decidendi

The court accepted uncontested evidence that claimant's counsel inadvertently referenced the wrong federal statute and that both parties intended the pension transfer to occur under the Pension Benefits Standards Act; there was no evidence the respondent instructed counsel to use the inapplicable statute and the respondent's prior conduct and documents supported application of the Pension Standards Act; accordingly paragraph 25 was rectified to substitute the Pension Benefits Standards Act for the Pension Benefits Division Act. On the Supplemental Pension the court found the parties knew Air Canada's policy would not permit direct division and that the claimant did not prove an intention...

Court Disposition

Application granted in part: paragraph 25 of the separation agreement rectified to refer to the Pension Benefits Standards Act; claimant's claim for division of the Supplemental Pension dismissed; each party to bear their own costs.

Orders

  • Rectify paragraph 25 of the January 27, 2004 separation agreement by substituting 'Pension Benefits Standards Act' in place of 'Pension Benefits Division Act'
  • Decline to declare that the Supplemental Pension (RCA/SRP) is divisible under the Agreement; claim for its division dismissed