Claims Against Public Service Pensions By Spouses
Fricker v Fricker Estate 2014 BCSC 1729 dismissed the claim of a former spouse against her deceased’ spouse’s pension and discusses some of the problematic reasons that a spouse may need to overcome to succeed.
THE COURT: This is an application for summary judgment dismissing the within proceeding against it brought by the defendant Pension Corporation of British Columbia. I have received a useful chronology of the primary facts, which are not in dispute.
 The claimant, the former spouse of the deceased, claims an interest in the deceased’s pension. The Pension Corporation says that this is a simple matter of determining the entitlement to the pension pursuant to an unambiguous statutory scheme. The Pension Corporation says that under the applicable legislation, there is no claim to the pension.
 As I understand it, the claimant does not take issue with the statutory scheme. What the claimant says is that her entitlement to the pension arises by operation of law, upon pronouncement of the divorce order. She says that she is entitled to a share of the pension because, under the Family Relations Act, R.S.B.C. 1996, c. 128 [Act], she had an interest in a family asset, the pension, which arose upon her divorce, citing s. 56 of the Act. Most of the claimant’s authorities predate the specific provisions of the Act and the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352 [PBSA] dealing with these matters. Those authorities are therefore not helpful on this issue.
 As pointed out by the Pension Corporation, s. 56 of the Act is subject to Part 6 of the Act. Section 72(1) of Part 6 of the Act provides that if a pension to be divided is an unmatured pension in a local plan that is a defined benefit plan, a spouse may be designated a limited member of the local plan by delivering a notice in the prescribed form to the administrator of the plan. The Pension Corporation says that the claimant has no claims to the pension under the PBSA.
 The scheme of the PBSA is that upon a member’s death, the pension crystallizes and is converted into a pre‑retirement survivor benefit payable to the surviving spouse. I agree that the claimant does not qualify as a surviving spouse, as the claimant does not meet the definition of “spouse” included in s. 1 of the PBSA or the Municipal Pension Plan Rules.
 Having failed to meet the definition of surviving spouse, the claimant could nevertheless establish entitlement to the pension if she could produce a court order or separation agreement establishing entitlement by s. 64 of the PBSA. In doing so, the statutory onus is on the claimant: see s. 65 of the Act.
 The claimant is unable to establish an interest under s. 64(a) of the PBSA because she is unable to provide the Pension Corporation with a separation agreement, none was signed, or court order dividing the pension under Part 5 of the Act, such an order does not exist. I agree that the claimant is also unable to establish entitlement under s. 64(b) of the PBSA because she failed to take the necessary steps under Part 6 of the Act and the Division of Pensions Regulation, B.C. Reg. 348/2012, to establish her interest in the pension.
 To establish entitlement under Part 6 of the Act, the claimant was required under s. 72 of the Act and the Division of Pensions Regulation to become a limited member of the Municipal Pension Plan by delivering a completed Form 2, “Request for Designation as a Limited Member of Pension Plan”, to the Pension Corporation. Although given this opportunity, the claimant did not do this.
 Although Mr. McLeod has said all that can be said in favour of the claimant, I am not persuaded that her claim against the Pension Corporation can succeed.
 The Pension Corporation followed the statutory scheme and, in my view, is correct that the claimant in these circumstances has no entitlement to pre‑retirement survivor benefits. In the result, the claim against the Pension Corporation is dismissed with costs.
“The Honourable Mr. Justice Savage”