Sutherland v. Sutherland

Sutherland v. Sutherland

The Court reaffirmed and clarified that the Rutherford Order as settled governs pension division; the cut-off date established by the formal Order (July 31, 1990, the date of separation) controls valuation and the calculation of the percentage of pension benefits attributable to the marriage; contributions or service purchased or reinstated outside the period specified in the Order (including post-trial purchases) are excluded from the percentage calculation so as to avoid double recovery, and any numerical discrepancies in service years should be resolved by the pension administrator under the dates fixed by the Order.

Citation
2008 BCSC 1283
Parties
Petitioner: Debra Ann Sutherland; Respondent: William John Sutherland
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
24 September 2008
Procedural Posture
Family Relations Divorce and Property/pension Division / Post Judgment Clarification Motion / Application to Vary Prior Judgment
Outcome
Application to vary the 1993 order denied; prior order clarified and reaffirmed
Legal Topics
Rutherford Order, Valuation Date for Asset Division, Pension Buyback and Reinstatement, Interpretation of Judgment Vs. Formal Order, Post Judgment Relief
Source Language
English
Family Law Pensions Property Division Procedure Rutherford Order Valuation Date for Asset Division Pension Buyback and Reinstatement Interpretation of Judgment Vs. Formal Order +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Debra Ann Sutherland

Petitioner

William John Sutherland

Respondent

Procedural Posture

Family Relations Divorce and Property/pension Division / Post Judgment Clarification Motion / Application to Vary Prior Judgment

Legal Issues

  1. 1 Whether the trial judge's pension order should be read to include pre-separation pension service reinstated after trial
  2. 2 Whether the valuation date for division of matrimonial assets and pensions is date of trial or date of separation
  3. 3 Whether post-trial pension buybacks by a party should alter the percentage calculation established by the Rutherford Order

Ratio Decidendi

The Court reaffirmed and clarified that the Rutherford Order as settled governs pension division; the cut-off date established by the formal Order (July 31, 1990, the date of separation) controls valuation and the calculation of the percentage of pension benefits attributable to the marriage; contributions or service purchased or reinstated outside the period specified in the Order (including post-trial purchases) are excluded from the percentage calculation so as to avoid double recovery, and any numerical discrepancies in service years should be resolved by the pension administrator under the dates fixed by the Order.

Court Disposition

Application to vary the 1993 order denied; prior order clarified and reaffirmed

Orders

  • The Rutherford Order as settled on May 11, 1993 is reaffirmed and clarified.
  • The valuation cut-off for pension entitlement attributable to the marriage is July 31, 1990 (date of separation) as set out in the formal Order; the Order prevails over conflicting statements in the Reasons.