In King v. King, Mr. King, a former member of a registered pension plan sought a declaration that his former wife had waived her entitlement to a survivor’s pension. The Court dismissed Mr. King’s application.

Shortly after their separation, Mr. and Mrs. King entered into a separation agreement, which contained a general pension release, providing, in part, that Mr. King would be entitled to the “...sole use, ownership and benefit of... pension plans registered in his name as at the date of separation...” This included the benefits to which Mr. King was entitled under the registered pension plan. The separation agreement further provided that Mr. and Mrs. King would each execute any documents required to give effect to the terms and intent of the separation agreement.

Mr. King subsequently remarried and contacted the plan administrator to appoint his new wife as beneficiary and to confirm that the survivor pension would be paid to her. The plan administrator informed Mr. King that the separation agreement did not clearly state that his former wife waived her survivor pension and, therefore, did not constitute a valid waiver.

The Court held that, pursuant to s. 44(1) of the Pension Benefits Act (Ontario) (PBA), Mr. King’s pension became a joint and survivor pension when the first instalment of his pension was due in January 1992. At that time he was married to his former wife.

The Court went on to say that the general release provision of the separation agreement did not meet the waiver requirements ofs. 46(1) of the PBA, which provides, in part, as follows:

46(1) The persons entitled to a joint and survivor pension benefit may waive the entitlement to receive payment of pension benefits in the form of a joint and survivor pension by delivering to the administrator of the pension plan...a written waiver in the form approved by the superintendent or a certified copy of a domestic contract, as defined in Part IV of the Family law Act, containing the waiver. [Emphasis added.]

Although the separation agreement in this case contained a release, which explicitly released Mr. King’s former wife from any entitlement to Mr. King’s pension, the release did not constitute a valid waiver under the PBA. Such waiver must take the prescribed form and either (i) be included in the separation agreement filed with the pension plan administrator, or (ii) be filed separately with the pension plan administrator. Interestingly, in this case, the separation agreement contemplated the execution of other documents which would be needed to give effect to the separation agreement. Arguably, this would have included the prescribed form required by the Superintendent (at that time the Superintendent’s Form 3).

Although a separation agreement may contain language which purports to waive a spouse’s entitlement to a survivor pension, plan administrators should not be so quick to accept such agreements as valid waivers. The separation agreement itself must contain the proper, prescribed waiver and, if the waiver contained in the separation agreement is not in the prescribed form, a waiver in the prescribed form must be executed and filed with the plan administrator.