



COURT OF APPEAL FOR ONTARIO

CITATION: Carvalho v. Amorim, 2022 ONCA 158

DATE: 20220218

DOCKET: C69476

Trotter, Coroza and Favreau JJ.A.

BETWEEN

Daniel Carvalho

Applicant (Respondent)

and

Maria Amorim
and
The Labourers Pension
    Fund of Central and Eastern Canada

Respondents (
Appellant
/
Respondent
)

Patrick Di Monte, for the appellant

Eli Smolarcik, for the respondent Daniel Carvalho

Demetrios Yiokaris, for the respondent The
    Labourers Pension Fund of Central and Eastern Canada

Heard: February 14, 2022 by video conference

On appeal from the judgment of Justice William S. Chalmers
    of the Superior Court of Justice, dated April 16, 2021.

REASONS FOR DECISION

[1]

After hearing submissions on behalf of the appellant, Maria Amorim, we
    advised the parties that the appeal would be dismissed with reasons to follow.
    These are our reasons.

[2]

Ms. Amorim appeals a judgment declaring that she does not meet the
    eligibility requirements of a spouse under s. 44 of the
Pension Benefits
    Act
, R.S.O. 1990, c. P.8. The application judge based his decision on a
    finding that Ms. Amorim and the respondent, Daniel Carvalho, were living separate
    and apart at the time Mr. Carvalho started receiving disability benefits from
    the respondent, The Labourers Pension Fund of Central and Eastern Canada (the
    Pension Fund).
[1]
The effect of this finding is that Ms. Amorim is not entitled to survivor pension
    benefits and that Mr. Carvalho is entitled to life-only benefits, which are
    paid out at a higher rate than joint and survivor benefits.

[3]

We see no error in the application judges decision.

[4]

Mr. Carvalho and Ms. Amorim married in 1980. At the time, they were both
    residents of Portugal. They had one child together. Mr. Carvalho moved to
    Canada in 1985. Ms. Amorim joined Mr. Carvalho in Canada in 1990, but she
    returned to Portugal two months later. Mr. Carvalho traveled to Portugal from
    time to time, but he worked and lived in Canada while Ms. Amorim lived in
    Portugal. The couple commenced divorce proceedings in Portugal during 2007-2008,
    and they were formally divorced on July 14, 2009.

[5]

In August 2002, Mr. Carvalho applied to the Pension Fund for a
    disability pension. At the time, he advised the Pension Fund that he was
    legally married, but provided a waiver allegedly signed by Ms. Amorim waiving
    her right to a spousal survivor pension.

[6]

In 2008, at the time of the divorce proceedings, Ms. Amorim appointed
    her brother, Leonel Amorim, as her attorney for property in Canada. Mr. Amorim contacted
    the Pension Fund to enquire about whether Mr. Carvalho had applied for a
    pension. In the context of those communications, Mr. Amorim advised the Pension
    Fund that Ms. Amorim had never signed a spousal waiver. The Pension Fund
    subsequently reduced Mr. Carvalhos monthly payments to the joint and survivor
    benefit rate and notified him that he would be required to repay the
    overpayment unless he could prove that Ms. Amorim signed the waiver or that he
    and Ms. Amorim were living separate and apart when his pension began.

[7]

Mr. Carvalho brought an application to the Superior Court. The two
    issues to be decided on the application were 1) whether Mr. Carvalho and Ms.
    Amorim had been living separate and apart at the time Mr. Carvalho started
    receiving his pension and, alternatively, 2) whether Ms. Amorim signed the
    spousal waiver.

[8]

On the first issue, the application judge found, based on the evidence
    before him, that Mr. Carvalho and Ms. Amorim were living separate and apart at
    the time Mr. Carvalho started receiving pension benefits. On the second issue,
    the application judge found that Ms. Amorim did not sign the waiver. Nevertheless,
    given his finding that Mr. Carvalho and Ms. Amorim were living separate and
    apart at the relevant time, the application judge made declarations that Ms.
    Amorim did not meet the eligibility requirements of a spouse under the
Pension
    Benefits Act
and that Mr. Carvalho was entitled to pension benefits on a
    life-only basis. On the issue of costs, the application judge found that this
    was an appropriate case for an order of no costs, given that Mr. Carvalho
    misrepresented to the Pension Fund that Ms. Amorim had signed the spousal
    waiver.

[9]

In seeking to appeal the application judges decision, Ms. Amorim argues
    that the application judge erred in finding that she and Mr. Carvalho were
    living separate and apart in 2002.

[10]

On
    appeal, errors of law are to be reviewed on a standard of correctness. Factual
    findings and issues of mixed fact and law are owed deference and are only to be
    overturned if the application judge made a palpable and overring error:
Housen
    v. Nikolaisen
, 2002 SCC 33, at paras. 8, 10.

[11]

As
    conceded by Ms. Amorim, the application judge started with the correct legal
    test. Section 44(1) of the
Pension Benefits Act
provides that every
    pension paid to a member who has a spouse is to be paid out on a joint and
    survivor pension basis unless, pursuant to s. 44(4)(b), the member and his or
    her spouse are living separate and apart on the date that the first pension
    payment is due.
[2]
In determining whether Mr. Carvalho and Ms. Amorim were living separate and apart
    at the relevant time, the application judge turned to the case law under s. 8
    of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.). He described the following
    indicia, derived from
Greaves v. Greaves
(2004), 4 R.F.L. (6th) 1
    (Ont. S.C.), at para. 34, as relevant to his determination of whether the
    parties were living separate and apart:

a.

Physical
    separation, however, this is not the deciding factor as spouses may remain
    together for economic reasons;

b.

A withdrawal by
    one or both spouses from the matrimonial obligation with the intent of
    destroying the matrimonial consortium or of repudiating the marital
    relationship;

c.

the absence of
    sexual relations however this is not a conclusive factor;

d.

discussions of
    family problems and communications between the spouses;

e.

presence or
    absence of joint social activities; and

f.

the true
    intent of a spouse as opposed to a spouses stated intent.

[12]

The
    application judge went on to review the evidence from both parties about their
    living arrangements at the relevant time. Ultimately, he summarized his factual
    findings as follows:

I conclude that at the time Mr. Carvalho first began receiving
    his disability pension he and Ms. Amorim were living separate and apart. They
    were physically separated. From 1990, Mr. Carvalho lived in Canada and Ms.
    Amorim lived in Portugal. After 1990, Ms. Amorim did not travel to Toronto.
    There is also no evidence that they participated in each others lives in any
    meaningful way.

I acknowledge that parties can be in a marital relationship
    even if they live in separate locations:
Greaves v. Greaves
, at para.
    34. It is my view, however, that there must be evidence of a common purpose,
    involvement in each others lives, and communication either in-person or by
    letters, texts, e-mails or phone. Here, there is no evidence of any sustained
    or significant interaction between the parties at the time Mr. Carvalho began
    receiving the disability pension in August 2002.

[13]

We
    see no reviewable errors in the application judges findings of fact. They are
    supported by the record and, as set out above, his factual findings are
    entitled to deference.

[14]

Ms.
    Amorim takes issue with some of the application judges factual findings. For
    example, she argues that he did not consider the contradictions in Mr. Carvalhos
    evidence regarding when the parties stopped having sexual relations. However,
    it is evident from the application judges conclusions that he based his
    decision on the overall circumstances of the relationship between the parties. He
    considered the fact that the parties had not lived in the same location for
    many years and that they had little regular ongoing contact. This
    uncontradicted evidence supported his conclusion that the parties did not
    participate in each others lives in any meaningful way.

[15]

Ms.
    Amorim also argues that there was no change in the parties relationship from
    the mid-1990s to 2007-2008, when Mr. Carvalho initiated divorce proceedings,
    thereby suggesting that they were not living separate and apart in 2002.
    However, the issue for the application judge was not whether there had been any
    change in the relationship prior to 2002, but whether the parties were living
    separate and apart at that time.

[16]

The
    list of indicia for determining whether parties are living separate and apart
    is not formulaic and no individual factor is determinative. In this case, the
    application judge considered the totality of the evidence. He was aware that
    there were contradictions between the parties evidence. However, looking at
    all the circumstances, he found that they were living separate and apart in
    2002. His conclusion is entitled to deference and is supported by the record.

[17]

The
    appeal is therefore dismissed.

[18]

Despite
    being unsuccessful on the appeal, Ms. Amorim asks that no costs be awarded
    against her. She argues that she did not choose to become involved in the
    litigation and that the only reason this matter went to court was because of
    Mr. Carvalhos misrepresentation that she signed a spousal waiver. While the
    application judges decision to award no costs was justified given Mr.
    Carvalhos conduct, the same rationale does not apply to the costs of the appeal.
    It was Ms. Amorim who chose to pursue the appeal. Therefore, in our view,
    there is no reason for the court to depart from the usual principle that the
    unsuccessful party is to pay costs to the successful party.

[19]

Ms.
    Amorim is to pay costs of $7,500.00, all inclusive, to Mr. Carvalho. No costs
    are awarded to or against the Pension Fund.

Gary Trotter J.A.

S.
    Coroza J.A.

L.
    Favreau J.A.






[1]

The Pension Fund took no position on the merits of the appeal.



[2]

The
Pension
    Benefits Act
has since been amended and the living
    separate and apart exception to the definition of spouse is now found in s.
    44(1.1).


