Valuation Of Pensions: Trending Towards Date Of Separation?

The Matrimonial Property Act provides direction to the valuation and distribution of matrimonial property in sections 7 and 8. The Alberta Court of Appeal in Mazurenko v. Mazurenko, 1981 ABCA 104, confirms the general principle that the date of valuation of matrimonial property in Alberta is the date of trial. Although there may be factors in the Matrimonial Property Act that will influence the valuation date or the related proportional division, the starting point in valuing all matrimonial assets is the fair market value at the date of trial.

However, in reviewing cases post Mazurenko, there appears to be a trend to refrain from treating pensions in the same manner as other types of matrimonial property. Courts are increasingly valuing pensions at the date of separation, not the date of trial. For example, in Mew v. Mew, 2011 ABQB 531, Beier v. Beier, 2011 ABQB 371, Shopik v. Shopik, 2014 ABQB 41, and Rands v. Rands, 2011 ABQB 605, the Alberta Court of King’s Bench determines that the pensions in question should only be equally shared during the period of “joint accrual”. Therefore, only allowing the non-pension earning party to share in the value of the pension directly accrued during the marriage. Any portion of the pension earned before marriage or after separation has not been divided. In Rands, the Court goes as far explicitly stating that pensions differ considerably from other types of assets.

There is some indication from the judgments, that one of the factors influencing this determination may be the lengthy period of separation preceding the trial, and the corresponding lack of contribution by the other party to the pension during this period.This opens up a number of questions regarding matrimonial property valuation. In particular, the distinction between a pension and an employer funded registered retirement savings plan, and what constitutes a contribution. For example, is there an argument that the employee may not be in the position they are in, earning the pension they are earning, without the contribution of the non-pension earning party.