CN withholding pension from gay widower over outdated definition of spouse

Ken Haire was devastated when his partner of 33 years, Gerry Schwarz, died in 2012. He was even more distraught when he learned he wouldn't see a dollar of the survivor benefits built into Schwarz'spension because CN Rail'splan did not recognize same-sexrelationshipsat the time of Schwarz's retirement.

Haire has spent parts of the last nine years fighting to getCN'spension and benefits department to overturn its decision. Now 71 years old, he's taken that fight public.

"He would be devastated if he knew what was going on now," Haire said of his late partner. "He was a company man. He loved CN Rail."

Schwarz worked for CN in Toronto for more than 30 years. He retired in 1991, and the couple later moved to Harbour Grace, N.L., to be closer to Haire's family.

They built a life there, with five Pekingese show dogs and a home overlooking the water, decorated with paintings and antiques Schwarz had brought from his home country of Germany.

We realize that some former practices and decisions made in good faith in the past need to be re-examined in light of our engagement toward diversity and inclusion- CN statement

He diedfrom heart failure on Jan. 2, 2012, at the age of 76. Schwarzhad plans in place in the event he died early. It largely revolved around his CN pension.

"He felt comfortable that if anything happened to him, I would be able to continue on with a reasonably comfortable lifestyle," Haire said. "And it didn't happen that way."

Company admitspolicyfalls short on inclusion, diversity

When Haire got Schwarz's death certificate, he reached out to CN. The companysent condolences on the loss of his common law spouse, and said itwould do everything in itspower to make sure his pension continued to be paid out.

But on Jan. 31, 2012, Haire got a very different letter from CN's pension and benefits department. Itinformed him that the definition of spouse at the time of Schwarz'sretirement from CN was a "person of the opposite sex,"in a conjugal relationship for more than one year. Even though the terms had been updated in 1998 to include LGBTrelationships,the pension plan had not made those changes retroactive.

Therefore, Haire was not entitled to anything.

"I suddenly went from being Gerry's common law spouse, to just being a roommate," Haire said. "I was hurt. I was more insulted by the fact that after all those years and all the people he had worked with, that they still didn't acknowledge the fact that Gerry and I were a couple. We were a couple in every sense of the word. It really did hurt."

WATCH | CN says former policies may have to be re-examined:

CN reviewing policy that withheld pension from gay widower

3 years ago

Duration 2:10

CN Rail says it's reviewing its policy that kept a Newfoundland man from getting his deceased same-sex partner's company pension as a surviving spouse. CN rejected his claim for years, but a legal expert says the company would have little chance in court.

Despite not budging on Haire's repeated requests throughout the years, CNtold CBC News on Saturday that itis nowreviewing how its policies have affected workers who retired before 1998.

"We realize that some former practices and decisions made in good faith in the past need to be re-examined in light of our engagement toward diversity and inclusion," a CN spokesperson said in a statement.

The original decisionforced Haire'shand in heartbreaking financial decisions. He sold the house they'd lived in together, and had to sell most of Schwarz's antiques and paintings. Hardest of all, Hairehad to give up their dogs when he moved into an apartment.

"It would have broke his heart," said Haire, stopping for a moment to catch the tears rolling down his cheeks.

What does the law say?

While he gave up the fight at times over the years, Haire has now dug in for one last kick at the can. He's hired a lawyer and plans to challenge the decision in court.

He has a legitimate shot, according to one of the country's top lawyers in LGBTrights.

"I don't really think that CN has much of a defence, quite frankly," said Douglas Elliott, a partner with the Toronto law firm Cambridge LLP.

Elliott argued one of the most prominent LGBTrights cases in the country, when he successfully unlocked Canada Pension Plan benefits for surviving spouses in same-sex relationships. The Supreme Court of Canada ordered the federal government to make the funds available retroactive to 1985, when the Canadian Charter of Rights and Freedoms went into effect.

He believes the precedent from that case would be a behemoth for CN to overcome if itshould choose to fight this in court.

Elliott also said he understands the turmoil Haire is going through right now.

"It's a terrible economic burden, but also a terrible psychological burden, to be told by someone that your relationship doesn't count, that your relationship was second-rateand that they're going to try and erase that relationship or devalue it. Especially after that man devoted his life to CN Rail, it's really reprehensible."

Elliott called CN's policy "bigoted," and said it's frustrating to still be fighting thesesituations in 2021.

If CN chooses to reverse course and pay out the money, Haire said he'd accept it. But he won't act grateful.

"It would be nice to get the pension and it would be nice to keep it going until I pass away. But there's absolutely [nothing]they could do to compensate me for the loss of my home, for the loss of everything Gerry and I worked for, or for the loss of our pets," he said.

"They've made my life hell and it's just not right."

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