Smith v. Canada ( Attorney General )
T-1296-97
Blais J.
9/11/99
9 pp.
Application for judicial review of decision by Department of National Defence denying applicant's application for division of pension benefits-Applicant married to Garnet William Smith, member of Canadian Military in 1963-Signed property settlement giving up entitlement to husband's pension, severance pay, entitlement to support in amount of $14,000-Husband died in 1993 without retiring, collecting pension-Application for pension division refused by Lise Guevremont of DND as being late-Sirois J. ordering division of pension-Whether Pension Benefits Division Regulations (PBDR), s. 6(1)(b) ultra vires-In order to determine whether Regulations adopted in conformity with Pension Benefits Division Act, imperative to examine purpose of Act-Act's primary, only purpose to act as mechanism for pension division-Division of pension benefits approved by Sirois J. but Minister refused to approve it under Regulations-PBDR, s. 6(1)(b) defeats purpose of Act, as purports to act as bar to pension division stipulated in Act-Time limits in Act not impediment to right to divide pension-Respondents failing to make distinction between right to pension division as set out in Act, ss. 4, 7, 8 and value of pension as set out in Regulations-Right to pension division denied herein, right created by statute-PBDR, s. 6(1)(b) ultra vires-Application allowed-Pension Benefits Division Regulations, SOR/94612, s. 6(1)(b)-Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II, ss. 4, 7, 8.