THE APPEAL from the Judgment of the Honourable Mr. Justice Bouck of the Supreme Court pronounced the 27th day of December, 1979, and the 13th day of June, 1980, and entered the 5th day of September, 1980, having come on for hearing before this Court at the City of Vancouver, in the Province of British Columbia on the 15th and 16th days of June, 1980; UPON READING the Appeal Books and the Factums herein; Upon Hearing L. C. Dudley, Esq. and S. H. Heringa, Esq. of Counsel for the Appellant, Raymond Rutherford, Robert C. Doell, Esq. and Ms. Deborah A. Acheson, of Counsel for the Respondent, Frances Jean Rutherford, Herbert L. Matthews, Esq. of Counsel for the Respondent, Warren Archibald Dennis, and Fiona Gow, of Counsel for Her Majesty the Queen in Right of the Province of British Columbia and her Representative, the Superannuation Commissioner; and Judgment being reserved to this date:

THIS COURT ORDERS the appeal by the Appellant on the claim for damages for adultery and costs against the Respondent, Warren Archibald Dennis, be and the same is hereby dismissed with costs to the Respondent, Warren Archibald Dennis:

AND THIS COURT FURTHER ORDERS AND DECLARES that part of the pension of the Appellant under the Pension (Public Service) Act, determined by dividing by 35 the number of years of contribution prior to November 15th, 1976, being 346/12 years, is a family asset:

AND FURTHER ORDERS that the voluntary contributions by the Appellant to the pension be divided into three parts and dealt with as follows:

 (a) Voluntary contributions that arose prior to November 15th, 1976, are declared to be a family asset;

 (b) Voluntary contributions that were made from family assets between November 16th, 1976, and December 27th, 1979, and were not deductions from the Appellant's salary, are declared to be a family asset;

 (c) Voluntary contributions that were obligatory when made by the Appellant during the early period of his employment but which are converted into voluntary contributions and considered as being earned when released by obligatory contributions made by the Appellant after November 15th, 1976, are declared not to be assets to which the Respondent, Frances Jean Rutherford, has an entitlement.

AND FURTHER ORDERS AND DECLARES that the Respondent, Frances Jean Rutherford, is entitled to a ½ interest in those parts of the pension and voluntary contributions that are declared to be family assets:

AND FURTHER ORDERS the Appellant to pay to the Respondent, Frances Jean Rutherford, at the date of termination of his employment a sum equal to the amount of her share in the voluntary contributions declared to be family assets plus interest earned thereon to that date:

AND FURTHER ORDERS the Appellant forthwith to rescind any nomination made by him under the Pension (Public Service) Act with respect to his pension rights and any benefit deriving thereunder:

AND FURTHER ORDERS that if the Appellant dies in service and a third person becomes entitled to apply and does apply for any pension right or benefit declared to be a family asset, the interest of the Respondent, Frances Jean Rutherford, in that family asset is enforceable against that third person forthwith after that third person has had actual or constructive notice of the interest:

AND FURTHER ORDERS that when the appellant shall apply for a pension he shall not elect or change an election of a plan of superannuation allowance without the written approval of the Respondent, Frances Jean Rutherford, to the plan of superannuation allowance with respect to her interest in that part of the pension declared to be a family asset:

AND FURTHER ORDERS that if the Appellant, having attained the age of 55 years, does not apply for a pension and the Respondent, Frances Jean Rutherford, gives not less than 30 days' written notice in writing to the Appellant that she elects to receive compensation equivalent to her share in that part of the pension declared to be a family asset computed as if the Appellant had retired on the first day of the month following the expiration of the notice, the Appellant shall pay to the Respondent, Frances Jean Rutherford, a sum of money in each month equal to her said share, plus the amount payable in accordance with the indexing provisions of the Pension (Public Service) Act commencing on the last day of the month following the expiration of the notice and continuing thereafter on the last day of each month during her lifetime. For the purpose of this clause only the pension shall be deemed to exclude any voluntary credits due to the Respondent, Frances Jean Rutherford.

AND FURTHER ORDERS that the Appellant is a trustee for the Respondent, Frances Jean Rutherford, of her share in the pension and any benefits deriving thereunder, and shall not do or omit any act to the prejudice of the interest therein of the Respondent, Frances Jean Rutherford.

AND FURTHER ORDERS the Appellant to deliver to the Respondent, Frances Jean Rutherford, copies of all communications between him and the Superannuation Commissioner, or his successor, with respect to his pension rights or any benefit deriving thereunder within 21 days after the communication.

AND FURTHER ORDERS the Appellant, whenever possible, to sever his pension rights and any benefit deriving thereunder and transfer to the Respondent, Frances Jean Rutherford, all her right and interest therein.

AND FURTHER ORDERS the Appellant to authorize the Superannuation Commissioner to provide to the Respondent, Frances Jean Rutherford, information requested by her from time to time relating to her right and interest in the pension and any benefit deriving thereunder.

AND FURTHER ORDERS that the power to make further orders, including security, be reserved.

AND FURTHER ORDERS that the appeal by the Appellant is dismissed with costs to the Respondent, Frances Jean Rutherford.

AND FURTHER ORDERS that the Respondent, Frances Jean Rutherford, be allowed 25% and the Appellant be allowed 75% of the costs of the cross-appeal.