Date: 20050622
Docket: A-446-04
Citation: 2005 FCA 242
CORAM: RICHARD C.J.
BETWEEN:
CALVIN DOMINIE
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly Minister of Human Resources Development)
Respondent
Heard at St. John's, Newfoundland and Labrador, on June 22, 2005.
Judgment delivered from the Bench at St. John's, Newfoundland and Labrador,
on June 22, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Date: 20050622
Docket: A-446-04
Citation: 2005 FCA 242
CORAM: RICHARD C.J.
BETWEEN:
CALVIN DOMINIE
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
(formerly Minister of Human Resources Development)
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at St. John's, Newfoundland and Labrador, on June 22, 2005)
[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 |