Cashin v. Cashin

Cashin v. Cashin Court Court of Appeal Date 2010-06-09 Citation 2010 NSCA 51 Docket CA 319376 Judge/Registrar/Adjudicator Farrar, David P.S. (Honourable Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Cashin v. Cashin - 2010 NSCA 51 - 2010-06-09 - Library Sheet See also - R. v. Mira Vista Apartments Ltd. - 2010 NSSC 302 - 2010-07-28 - Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Cashin v. Cashin, 2010 NSCA 51 Date: 20100609 Docket: CA 319376 Registry: Halifax Between: Terrance Jerome Cashin Appellant v. Barbara Jean Cashin Respondent Judges: Bateman, Fichaud and Farrar, JJ.A. Appeal Heard: June 2, 2010, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Fichaud and Farrar, JJ.A. concurring. Counsel: Adam D. Rodgers, for the appellant Wayne J. MacMillan, for the respondent Reasons for judgment: [1] This is an appeal by Terrance Jerome Cashin from a Corollary Relief Judgment granted by Justice Lawrence I. O’Neil of the Supreme Court (Family Division). The reasons for judgment are reported at 2009 NSSC 302, [2009] N.S.J. No. 508 (Q.L.). [2] The parties had settled many of the issues before trial, leaving only three areas to be decided by the trial judge. This appeal involves but a single issue. Mr. Cashin says the judge erred in determining that the bridging supplement to his retirement pension was a matrimonial asset and therefore subject to equal division between the parties. The Standard of Review [3] In Young v. Young, 2003 NSCA 63, this Court summarized the standard of review in matrimonial proceedings: [6] The standard of appellate review on an appeal from a division of assets is the usual deferential civil standard. This Court is entitled to intervene only where it is demonstrated that the trial judge has erred at law; applied incorrect principles; made a palpable and overriding error of fact or the result is so clearly wrong as to amount to an injustice. (See MacLennan v. MacLennan (2003), 212 N.S.R. (2d) 116 (C.A.)). Analysis [4] This was a long term marriage commencing in 1973 with the parties separating in 2007, after the husband’s early retirement from employment. He was receiving the disputed bridging benefit at the time of separation. [5] I will reproduce the judge’s reasons for finding the bridging supplement to be a matrimonial asset. He said: [20] Exhibit 11 is an excerpt from the collective agreement which governed Mr. Cashin's employment at the time of his retirement in November 2004, from the local pulp and paper mill. [21] Clause 3.21, 3.22 and 3.33 reads in part as follows: C3.21 Any member in service may elect early retirement upon attainment of age 55 and over, providing the member has accumulated at least twenty (20) years of service, ......... C3.22 Any member so retiring shall receive commencing on the member's early retirement date, a retirement allowance the member has accumulated by such retirement date. The pension plan will provide for any contributory member who elects to retire upon attainment of 55 years of age or over, providing the member has accumulated at least twenty (20) years of service, a bridging supplement of the amount of which shall be equal to the number of years of credited service to a maximum of thirty (30) years multiplied by the following factor:..... C.3.30 The bridging supplement shall commence on the members early retirement date and terminate with the payment on the first of the month following the member's 65th birthday, or with the member's death, whichever is earlier. [22] I am satisfied that the bridging supplement is a matrimonial asset similar in nature to the pension earned by Mr. Cashin; which the parties agree is a matrimonial asset. Mr. Cashin testified that the bridging supplement is designed to assist a retiree until the retiree qualifies for Canada pension benefits at the age of 65. Mr. Cashin also agreed that the bridging benefit is determined on the basis of years of service with a longer‑term worker to obtain a greater bridging amount. In the case of Mr. Cashin, he receives $8‑$900 each month in addition to his other pension income. He was not sure of the exact amount. This is an earned benefit and part of the retirement options available to employees and therefore, a matrimonial asset. [23] I am satisfied that the decision of Justice Bateman in Bellemare v. Bellemare, 1990 CanLII 2605 (N.S.S.C.) is the applicable law in the circumstances. Our Appeal Court, in the 1992 decision Yaschuk v. Logan, 1992 CanLII 2595, confirmed the principles that must be applied. [24] Mr. Cashin's counsel provided the Wartman v. Wartman [2004] N.S.J. No. 225 decision. This decision of Associate Chief Justice Ferguson in 2004, dealt with a severance benefit following the involuntary termination of an employee. The event that triggered the funds was a termination of employment, which occurred after separation. The severance was payment for a loss of future income. It is distinguishable on this basis. (Emphasis added) [6] It was Mr. Cashin’s evidence that full retirement was available to employees at age 57 but because an employee could not draw full CPP until age 65, the bridging benefit was intended to substitute for the CPP, until it came on stream. [7] Mr. Cashin says the bridging benefit is provided under the collective agreement by his employer as an incentive to retire early. He says it is meant to compensate him for income he would otherwise have earned had he not retired rather than to top up his pension. Thus, Mr. Cashin says, it is akin to a wrongful dismissal award, or a severance package paid in relation to involuntary termination of employment. Alternatively, he submits, it is simply an income stream not an “asset”. I would disagree. In my view O’Neil, J. did not err in distinguishing Wartman, supra (see para. 5 above). I make no finding as to whether funds paid in relation to an involuntary termination are or could be a matrimonial asset. That is not the nature of the bridging benefit. Here, the bridging benefit was not a contingent future entitlement that may or may not be paid, as Mr. Cashin’s argument would suggest. As I have said, he was receiving the monthly income from the benefit at the time of separation. His entitlement to it had been earned during the marriage. (see Yaschuk v. Logan, [1992] N.S.J. No. 99 (Q.L.)(C.A) per Chipman J.A. at page 5) [8] Pursuant to s. 4(1) of the Matrimonial Property Act, R.S.N.S. 1989, c. 275 all real and personal property acquired by either or both spouses before or during their marriage is a matrimonial asset, subject to certain enumerated exceptions. The burden of proving that an asset is not matrimonial by reason of exception falls upon the spouse making that assertion. Pensions are, prima facie, matrimonial assets. The bridging benefit is clearly a part of that pension entitlement. In any event, it is a service-based benefit earned during the marriage as part of Mr. Cashin’s employment package. It was not an asset acquired after separation. It does not fall within the s. 4 exceptions. [9] Mr. Cashin relies upon the definition of “bridging benefit” in the Pension Benefits Act, R.S.N.S. 1989, c. 340 (“the P.B.A.” ), to support his claim that it is a source of funds distinct from a pension and should therefore be treated differently. The P.B.A. says: 2. In this Act ... (e) "bridging benefit" means a periodic payment provided under a pension plan to a former member of the pension plan for a temporary period of time after retirement for the purpose of supplementing the former member's pension benefit until the former member is eligible to receive benefits under the Old Age Security Act (Canada) or is either eligible for or commences to receive retirement benefits under the Canada Pension Plan or the Quebec Pension Plan; ... 48 (1) A pension plan may provide the following ancillary benefits: (a) disability benefits; (b) death benefits in excess of those provided in Section 56 (pre‑retirement death benefit); (c) bridging benefits; (d) supplemental benefits, other than bridging benefits, payable for a temporary period of time; (e) early retirement options and benefits in excess of those provided by Section 49 (early retirement option); (f) postponed retirement options and benefits in excess of those referred to in subsection (4) of Section 41; (g) any prescribed ancillary benefit. (2) An ancillary benefit for which a member has met all eligibility requirements under the pension plan necessary to exercise the right to receive payment of the benefit shall be included in calculating the member's pension benefit or the commuted value of the pension benefit. (3) For the purpose of subsection (2) and clause (c) of subsection (1) of Section 20, where the consent of an employer is an eligibility requirement for entitlement to receive an ancillary benefit and a member or former member has met all other eligibility requirements, the employer is deemed to have given the consent to the member or former member. [10] The provisions of the P.B.A. do not support Mr. Cashin’s submission. As is obvious, the P.B.A. treats a bridging benefit as a part of the pension entitlement. In any event, as this Court discussed in Morash v. Morash, 2004 NSCA 20 (at paras. 28 and 29), the P.B.A. provides a mechanism for the division of pension credits at source, but does not purport to govern entitlement. Indeed, P.B.A. Reg. 313/2009, s. 70 expressly provides that a spouse’s share of “. . .a pension or pension benefit . . .” must be determined by a court order or separation agreement. [11] This appeal is completely without merit. Disposition [12] I would dismiss the appeal with costs of $2500 inclusive of disbursements payable to Barbara Jean Cashin. Bateman, J.A. Concurred in: Fichaud, J.A. Farrar, J.A.