Federal Court of Appeal - Dominie v. Canada (Minister of Social Development)

[1] This is an application for judicial review of the decision of the Pension Appeal Board (PAB) dated July 16, 2004. The PAB essentially held that a division of unadjusted pensionable earnings which affected the applicant had been carried out by the respondent in accordance with all applicable statutory provisions.

[2] We can discern no error in the decision of the PAB.

[3] The PAB properly interpreted the mandatory requirement of paragraph 55.1(1)(a) of the Canada Pension Plan which governs the division of unadjusted pensionable earnings upon the Minister being informed of a decree absolute of divorce.

[4] The PAB correctly concluded that the legislative intent was that credit splitting be mandatory and automatic following a divorce.

[5] The only exception, as provided in paragraphs 55.2(3)(a) and (b) of the Plan, is where the spousal agreement of the spouses or former spouses that there be no division of pension credits expressly mentions the Canada Pension Plan and is expressly permitted under the provincial law that governs the spousal agreement.

[6] Neither conditions are met here. The spousal agreement, as found by the PAB, does not expressly mention the Canada Pension Plan. At the relevant time, no such provincial law existed in Newfoundland and Labrador which is the provincial law that applies in this case.

[7] With respect to the Minister's exercise of discretion under subsection 55.1(5) of the Plan, we are satisfied that the conditions precedent for the exercise of that discretion are not present.

[8] Accordingly, the application for judicial review will be dismissed.

"J. Richard"

Chief Justice

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-446-04

(APPEAL FROM A JUDGMENT OR ORDER OF THE (SEE COMMENT IN LEFT MARGIN) DATED (DATE), (SEE COMMENT IN LEFT MARGIN) NO. (DOCKET NUMBER) if applicable.)

STYLE OF CAUSE:

CALVIN DOMINIE v. MINISTER OF SOCIAL DEVELOPMENT (formerly Minister of Human Resources Development)

PLACE OF HEARING: St. John's, Newfoundland and Labrador

DATE OF HEARING: June 22, 2005

REASONS FOR JUDGMENT OF THE COURT: RICHARD C.J., DÉCARY J.A. and NOËL J.A.

DELIVERED FROM THE BENCH BY: RICHARD C.J.

APPEARANCES:

Mr. Wayne White

FOR THE APPLICANT

Mr. Stephan Bertrand

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Wayne White Law Office

St. John's, Newfoundland and Labrador

FOR THE APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General

Ottawa, Ontario

FOR THE RESPONDENT