- Pension benefits and locked-in retirement accounts are valued by the Court and their value is distributed under the Act, even when the pension itself cannot be transferred or paid out.
- Property acquired during the marriage is presumed to be shared equally, but the Court can depart from that if an equal split would not be just and equitable.
- Property to be divided is generally valued at the date of trial unless a written agreement that meets section 38 says otherwise.
A pension is often the largest asset a couple builds, and it is also one of the hardest to picture dividing. You cannot split a monthly cheque the way you split a bank account, and the plan's own rules may limit what can be done with it.
This article explains in general terms how Alberta's Family Property Act deals with workplace and government pensions when a relationship ends. Every situation turns on its own facts, so use this as a starting point for a conversation with a lawyer.
This article covers the law of Alberta.
Which law applies to your pension
The Family Property Act is the former Matrimonial Property Act, renamed with changes that took effect January 1, 2020. It now applies to adult interdependent partners as well as married spouses.
Spouses who were divorced, or who were living separate and apart, before January 1, 2020 generally stay under the old Matrimonial Property Act, with some exceptions. For adult interdependent partners, the Act applies only if they had not begun living separate and apart, and had not become former partners, before January 1, 2020.
How the Court treats a pension
The Court may divide all property owned by the spouses or partners, whether it is owned jointly or individually. A pension in only your name is therefore not automatically off the table.
For spouses, property acquired during the marriage that is not exempt is distributed equally, and partners have the same equal rule for property acquired after their relationship began. Property a spouse acquired before the marriage is generally exempt where there was no interdependent relationship beforehand, and property a partner acquired before the relationship began is also exempt, but any growth in the value of exempt property is not exempt and is distributed in a way that is just and equitable after the Court considers the s. 8 matters. How that applies to a pension that was partly earned before the relationship is a question to confirm with a lawyer.
When the pension cannot be transferred
Pension plan benefits and locked-in retirement accounts cannot be transferred or paid out where the governing pension or retirement legislation does not allow it. The Court must still value them and distribute their value under the Act in the family property order.
The Court has a wide range of tools in a family property order. It can order payment of money, transfer of an interest in property, payment by instalments, or any other order it considers necessary.
Unless a written agreement that meets section 38 provides otherwise, property to be distributed is valued at the date of trial. A written agreement that meets section 38 may set a different valuation date.
When an equal split may not be fair
The equal-sharing presumption gives way where an equal split would not be just and equitable after the Court considers the section 8 matters. Some of those matters include:
- Contributions to the marriage and family welfare, including homemaking and parenting.
- Each party's income, earning capacity, liabilities, property and resources at the start and at trial.
- The length of the marriage or relationship.
- Any oral or written agreement, and any earlier distributions by gift, agreement or order.
- Tax liability from a transfer or sale.
What to do next
Each party must file a sworn statement disclosing all their property wherever located, and serve it on the other party. Start gathering pension information early so that your disclosure is complete.
- Collect recent pension statements and plan booklets for both of you.
- Note when each pension started and when the relationship began.
- Locate any marriage, cohabitation or other agreement and have a lawyer review it, since an agreement meeting section 38 can displace the Act's division rules.
- Mark the time limits: spouses must generally apply within 2 years of separation or of the decree, and adult interdependent partners have 2 years from when they knew or should have known the relationship ended.
- Ask a lawyer how the plan's own rules affect what kind of order can work.
Frequently asked questions
Can the Court divide a pension that is only in one person's name?
Yes. The Court may divide property owned jointly or individually. Whether all of it is shared depends on exemptions and the facts.
What if the pension plan does not allow a transfer?
The Court must still value the pension benefits and distribute their value under the Act, even where the governing legislation does not allow the benefits to be transferred or paid out. The order might then be worked out using other property or money.
When is a pension valued?
Unless a written agreement meeting section 38 provides otherwise, the valuation date is the date of the trial. A section 38 agreement may set a different date.
Does a pension earned before the relationship count?
Property acquired before the relationship began is generally exempt, but any growth in its value is not exempt and is distributed in a way that is just and equitable rather than automatically shared equally. How that applies to a pension earned partly before and partly during the relationship is something a lawyer or pension valuator can help confirm.
Sources
- Alberta.ca – Family law changes — alberta.ca
- Family Property Act, RSA 2000, c F-4.7, s. 39 (Alberta King's Printer) — kings-printer.alberta.ca
- Alberta.ca – Dividing property between unmarried partners — alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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