On January 1, 2017, the Ontario government has changed the definition of spouse under the Pension Benefits Act which will affect the way death benefits are to be paid in the case of pre-retirement death of a member of a registered pension plan. I am going to share these new rules and point out why the government has failed to get ahead on this issue.
I forget who first told me about the ‘spouse in the house’ rule back in the late 1980s. It might have been Randy Bauslaugh but after all these years I cannot be sure. I remember thinking at the time that it was a pretty lame rule that seemed so different than all the clear and logical rules that were written into the Ontario Pension Benefits Act in 1987 to improve conditions for members of registered pension plans.
For those that don’t know, the ‘spouse in the house’ rule was an unwritten rule that allowed you to decide what to do when a member of a pension plan died and had two individuals in their life that could be considered a ‘spouse’ under the PBA. The resolution was supposed to be that if you were living with the married spouse then they got the death benefit but if you were living with the girlfriend/boyfriend, who qualified as a common-law spouse, then they would be entitled to the death benefit. The idea was that whoever the member was living with would be the one financially dependent on the member and most deserving of protection under the PBA.
For more than 20 years the pension industry followed the ‘spouse in the house rule’ although I had always been skeptical. Then along came Ron Carrigan, a man that had two women in his life for whom he had accepted a significant financial responsibility and both were considered spouses under the PBA. One was a married spouse and the other a common-law spouse. Mr. Carrigan was an intelligent man and in arranging his affairs, he made clear his intentions to have his pension death benefit paid to his married spouse and in the event the benefit was not payable to her as spouse it was to be shared equally with her and their two daughters as beneficiaries.
Unbeknownst to Mr. Carrigan, the Financial Services Commission of Ontario had a different view, and when Mr. Carrigan died on June 4, 2008 it set in motion a series of disputes over who should be recognized as the recipient of the death benefit. Carrigan’s married spouse, retained a local lawyer, Rod Godard. To the best of my knowledge, Mr. Godard was not a pension industry insider which gave him the inherent advantage that he was completely unaware of the ‘spouse in the house’ rule. He had the good fortune to look at the legislation as it was written and not as many in the industry felt they knew it was intended. After losing in the lower court, Carrigan’s married spouse (not ‘in the house’) won on appeal. It is my view that she won because the appeal court was pushed into an ‘all or nothing’ decision and it was clear from the evidence that Mr. Carrigan was expecting his ‘wife’ to receive more than nothing and it was unclear what he was intending for his ‘common-law’ partner. To me, the most rational decision was a sharing of the benefit between the spouses – but the legislation did not seem to offer the appeal court the opportunity to choose this option and the two spouses failed to negotiate a compromise – probably because both legal teams were sure they were right. Of course only one of the legal teams was right.
As a post-script to the story, Ontario rushed out and amended the legislation so it is clear they intend the ‘spouse in the house’ to get the death benefit going forward, and they relieved all plan administrators of any liability if they paid the benefits under that unwritten rule prior to passing the legislation.
What now? What next?
As of January 1, 2017, the Ontario government has again amended the definition of spouse, this time to recognize different ways two people can be parents to a child and therefore qualify as spouses. In theory these are laudable efforts to make sure that as the world changes and the types of relationships evolve we are not stuck back in the 1950s with a man and a woman needing to be married and living together to be considered spouses. Interestingly, I just met a woman this week who lives in Toronto while her married husband lives in Washington DC.
What is lost in all this maneuvering is that the government should be getting out of the business of telling pension plan members who their beneficiary needs to be. Designating a beneficiary only to find out later that the government is going to over-rule your designation is a system ripe to cause chaos in financial planning. In the case of Carrigan, the facts were not consistent with the assumptions the government made to justify its legislation and the appeal court clearly saw that. In addition, plan administrators that are left to administer the death benefits are left searching for ‘possible spouses’ and spending time on the sidelines while parties argue over their interests. Finally, plan administrators will increasingly need to advise plan members to get legal advice as they complete their beneficiary designations and it’s my guess that many non-pension lawyers risk getting that advice wrong.
All of these layers create legal costs and planning uncertainty – for what benefit? Let pension plan members decide who they wish to choose as a beneficiary just like they can choose their beneficiary with life insurance and let’s stop this unnecessary paternalism and bureaucracy.