Deprivation of Pension Benefits During Divorce of a Couple - Paper Example

Critique #1: Deprivation Of Pension Benefits during Divorce of A Couple and the Wifes Failure to stick to the Initial Agreement

Dundas v. Schafer

Facts of the case

The parties met way back in September 1994, and they moved in to cohabit in May 1995.They lived together for close to one and a half years before they decided to plan their wedding at the start of December which they set the date to be 31st of December 1997.Close to the middle of December they discussed and agreed to exchange draft proposal for prenuptial agreement (Dundas v.Schafer 2014). At the time of interchanging the recommendations, the petitioner recommended to the respondent to consult a lawyer because she had done so too of which he did (Canada 2014). The respondent then took the two proposals to his lawyer who drafted an agreement combining the two. On 29th of December Schafer who had been provided with the final draft made plans to meet with her lawyer and went through the selection making few amendments (Dundas v.Schafer 2014). The agreement was signed on 30th December on the eve of their wedding.

The petitioner accepted that she was aware of the respondents unwillingness to share his pension because he had previously divorced and had already shared part of his retirement with the former wife. Besides the trial judge noted that the respondent was not willing to marry if he was to share his pension with another wife again (Dundas v.Schafer 2014). The petitioner had said to the respondent that she will not have claim over is the pension at the time and even in the future. The parties separated on the 4th of August 2005, and a divorce verdict was granted in 11th of January 2011.

Applicable legislation

The application was filled under the marital property Act of 1987 under clause 1.15 which defines the terms of any successor. On January 21st, 2014 the case was heard and both the petitioner and the respondent testified (Dundas v.Schafer 2014 Family property act FPA & Pension benefits act PBA). The petitioners claim during the trial was that the agreement was null of statutory illegality stating that the contract encroached section 31(2) of the pension benefits act (Canada 2014). The authorized the division of the respondent's pension benefits unless another agreement was entered into after partying and in line with the requirements set out in section 31(6) of the same act.

Analysis, decision, and opinion

The trial judge disagreed because in her idea there was a correlation between the family property act (FPA) and the pension benefits act (PBA).The judge, therefore, held that the FPA determined the right to pension benefits and it permitted a party to waive their rights to current and future assets of their partners(Dundas v.Schafer 2014 FPA & PBA). The endowment of the FPA and the PBA can be read as an interrelated scheme by recognizing where individuals have no existing right under the family property act and are not eligible for a partys provincially planned pension.

The pension statement executed by the petitioner was not void ab initio and is not excluded by the action of the requirements of the pension benefits act when combining with family property act. Therefore the petitioner is not eligible for a portion of the respondents pension (Dundas v.Schafer 2014 FPA & PBA. Concerning the respondents failure to disclose some assets, it was established that the petitioner was sufficiently cognizant of the presence of the pension and any information not revealed was not material.

The judge concluded that the respondent was entitled to repayment of $20,000 paid by agreement. However, the respondent contended that the offer to settle the matter was too fortunate to the petitioner that the order made (Canada 2014). The trial judge fixed the cost to $13,000 including payments and taxes in approval of the respondent.

References

V/Lex Canada (2014) Dundas v.Schafer Retrieved on 5th October 2017 from https://ca.vlex.com/vid/dundas-v-schafer-680559581.