Wed | Jun 3, 2020

Appeal court overturns decision on pension for common-law spouse

Published:Wednesday | March 14, 2018 | 12:00 AMMcPherse Thompson
The Supreme Court in downtown Kingston.

The Court of Appeal has overturned a high court ruling that would have allowed the common-law spouse of a policeman who passed away nearly a decade ago to collect a widow's pension from the Government.

Winsome Bennett had a relationship with Inspector Carlton Roy Campbell for more than five years up to the time of his death but was denied the pension benefit.

Supreme Court Justice Lennox Campbell ruled that Bennett was eligible for the widow's pension in December 2015 in a lawsuit Bennett brought against the government, a ruling that the state appealed.

The appellate panel ruled that Campbell came to a wrong decision.

Court of Appeal Justice Jennifer Straw, who wrote the decision for the three-member panel, noted, however, that it appeared that Parliament had since done what Justice Campbell sought to do through passage of the Pensions (Public Service) Act of 2017.

The legislation extends the definition of spouse to include a common-law union for a period of not less than five years. But at the time of the appellate judgement, delivered a week ago on March 9 of this year, the court noted that the law had not yet been gazetted and was not yet in operation.

Inspector Campbell, who was stationed at the Port Maria Police Station in St Mary, died of natural causes in September 2008. Up to the time of his death, he and Campbell shared a common-law union. They were unmarried but had a child together in 1973.

The Supreme Court declared Bennett to be the common law and sole surviving spouse of Campbell within the meaning of the Intestates' Estates and Property Charges Act in October 2009.

Two months later, her lawyer wrote to the minister of finance enquiring whether there were any gratuities or pension payable to Campbell's estate.

However, the finance minister responded that she did not qualify for the benefits given that she had not been legally married to Campbell and was not his widow or surviving spouse within the meaning of Section 62 of the Constabulary Force Act. Accordingly, the minister decided to pay a pension to Campbell's son, Rory, and a gratuity to the legal personal representative of his estate.

Bennett challenged that decision and Justice Campbell upheld her claim.

The Supreme Court judge ruled that the ordinary meaning of the word 'widow' or 'widower' ought to be determined by the understanding of the "ordinary man using the word in its popular sense", which he added may not necessarily accord with the meaning within the English dictionary and was susceptible to change in keeping with social reality.

Dissatisfied with Justice Campbell's decision, the minister, the Jamaica Constabulary Force, and the attorney general appealed.

In reversing the Supreme Court decision, the Court of Appeal determined that there was no inconsistency or ambiguity within the Constabulary Force Act and that Justice Campbell was wrongly influenced by the extended definition of spouse used within the Intestates' Estates and Property Charges Act as well as the Property (Rights of Spouses) Act.

Justice Straw said that those statutes dealt with discrete matters that are dissimilar to the government's grant of benefits and pensions to a surviving spouse.

Noting that 'widow' and 'widower' have a definite meaning, Justice Straw said that the ordinary and natural meaning of the relevant words, especially within the context and language of the statute, ought not to have been ignored by Justice Campbell in order to impose his view of what he considered just and expedient.

Ultimately, she said, it is for Parliament to decide whether the grant of gratuities, pensions, and related payments should be extended to common-law surviving spouses under the Constabulary Force Act.

Attorney Oraine Nelson, who represented Bennett, was not reached for comment as to whether they would appeal the March 9 ruling. Attorney Carla Thomas represented the minister of finance, the JCF, and the attorney general.