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Monday, May 04, 2020 @ 9:23 AM  

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Appeal by the wife from trial judgment determining that the wife was precluded by their separation agreement from sharing in the value of the husband’s Canada Post pension. The parties separated in 1999. Pursuant to their separation agreement, the wife released her rights in the husband’s Canada Post pension. The separation agreement preserved the agreement in the event of reconciliation and cohabitation for less than 90 days and voided it if the parties reconciled for a longer period. Payments, conveyances or acts that had been completed to carry out the agreement would not be invalidated. The parties reconciled in 2006 and separated in 2014. The trial judge held that the specific pension release clause was not voided by the parties’ reconciliation. He also found there was no evidence of the parties’ conduct that would set aside the clear terms of the agreement, and those terms were therefore a bar to the wife’s claim to share in the respondent’s pension prior to their reconciliation. The trial judge’s conclusion was based on his finding that the equalization payment made to the wife under the separation agreement included the value of her share of the pension up to the date of separation.

HELD: Appeal allowed. No transfer or conveyance was made respecting any entitlement by the wife to the husband’s Canada Post pension, the exception to the voiding clause in the separation agreement did not apply, and the release of the appellant’s right to share in the pension was void. The wife was entitled to receive a share of the pension from the date of marriage to the date of the second separation. The trial judge erred in his interpretation and application of the separation agreement by failing to give effect to the reconciliation clause that voided the agreement upon reconciliation for more than 90 days. The reconciliation lasted for almost nine years. Therefore, the separation agreement was void, except that any payment, conveyance or act completed under the agreement was not invalidated. The trial judge misapprehended the evidence regarding whether there was any payment for the value of the pension to carry out the terms of the separation agreement. There was no such payment and therefore the exception to the voiding provision did not apply. By finding that the pension release was not voided by the parties’ reconciliation, the trial judge failed to give effect to the express term of the reconciliation clause that provided that the separation agreement became void if the parties reconciled for more than 90 days. No portion of the equalization payment that the appellant received related to the value of the husband’s Canada Post pension. Therefore, the trial judge’s statement that the equalization payment to her was a conveyance envisioned by the agreement constituted a palpable and overriding error in the apprehension of the evidence and the application of the terms of the agreement. The voiding provision in the reconciliation clause, and not its exception, applied to the pension release. The language of the voiding clause in the separation agreement in this appeal clearly demonstrated the intent on reconciliation to return the parties to the position they were in prior to separation.

Miaskowski v. MacIntyre, [2020] O.J. No. 1059, Ontario Court of Appeal, K.N. Feldman, D.M. Brown and B. Zarnett JJ.A., March 9, 2020. Digest No. TLD-May42020001