An Act to amend the Judges Act and certain other Acts in relation to courts (S.C. 2006, c. 11)
Full Document:
Assented to 2006-12-14
An Act to amend the Judges Act and certain other Acts in relation to courts
S.C. 2006, c. 11
Assented to 2006-12-14
An Act to amend the Judges Act and certain other Acts in relation to courts
SUMMARY
Part 1 of this enactment amends the Judges Act to implement the federal government’s response to the report of the most recent Judicial Compensation and Benefits Commission regarding salaries and benefits of federally appointed judges. Included is a mechanism to divide judicial annuities upon breakdown of the conjugal relationship.
Part 2 makes certain amendments to the Federal Courts Act and a number of technical amendments to other Acts in relation to courts.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
PART 1AMENDMENTS TO THE JUDGES ACT
R.S., c. J-1Judges Act
Marginal note:R.S., c. 39 (3rd Supp.), s. 1(1), c. 51, (4th Supp.), s. 13; 1992, c. 51, s. 5(1); 1998, c. 30, s. 2(1); 2001, c. 7, ss. 1-13; 2002, c. 8, ss. 83, 84(E)
1. Sections 9 to 21 of the Judges Act are replaced by the following:
Marginal note:Supreme Court of Canada
9. The yearly salaries of the judges of the Supreme Court of Canada are as follows:
(a) the Chief Justice of Canada, $298,500; and
(b) the eight puisne judges, $276,400 each.
Marginal note:Federal Courts
10. The yearly salaries of the judges of the Federal Courts are as follows:
(a) the Chief Justice of the Federal Court of Appeal, $254,600;
(b) the other judges of the Federal Court of Appeal, $232,300 each;
(c) the Chief Justice of the Federal Court, $254,600; and
(d) the other judges of the Federal Court, $232,300 each.
Marginal note:Tax Court of Canada
11. The yearly salaries of the judges of the Tax Court of Canada are as follows:
(a) the Chief Justice, $254,600;
(b) the Associate Chief Justice, $254,600; and
(c) the other judges, $232,300 each.
Marginal note:Court of Appeal for Ontario and Superior Court of Justice
12. The yearly salaries of the judges of the Court of Appeal for Ontario and of the Superior Court of Justice in and for the Province of Ontario are as follows:
(a) the Chief Justice and the Associate Chief Justice of Ontario, $254,600 each;
(b) the 14 Justices of Appeal, $232,300 each;
(c) the Chief Justice and the Associate Chief Justice of the Superior Court of Justice, $254,600 each; and
(d) the 192 other judges of the Superior Court of Justice, $232,300 each.
Marginal note:Court of Appeal and Superior Court of Quebec
13. The yearly salaries of the judges of the Court of Appeal and of the Superior Court in and for the Province of Quebec are as follows:
(a) the Chief Justice of Quebec, $254,600;
(b) the 18 puisne judges of the Court of Appeal, $232,300 each;
(c) the Chief Justice, the Senior Associate Chief Justice and the Associate Chief Justice of the Superior Court, $254,600 each; and
(d) the 140 puisne judges of the Superior Court, $232,300 each.
Marginal note:Court of Appeal and Supreme Court of Nova Scotia
14. The yearly salaries of the judges of the Nova Scotia Court of Appeal and the Supreme Court of Nova Scotia are as follows:
(a) the Chief Justice of Nova Scotia, $254,600;
(b) the seven other judges of the Court of Appeal, $232,300 each;
(c) the Chief Justice and the Associate Chief Justice of the Supreme Court, $254,600 each; and
(d) the 23 other judges of the Supreme Court, $232,300 each.
Marginal note:Court of Appeal and Court of Queen’s Bench of New Brunswick
15. The yearly salaries of the judges of the Court of Appeal of New Brunswick and of the Court of Queen’s Bench of New Brunswick are as follows:
(a) the Chief Justice of New Brunswick, $254,600;
(b) the five other judges of the Court of Appeal, $232,300 each;
(c) the Chief Justice of the Court of Queen’s Bench, $254,600; and
(d) the 21 other judges of the Court of Queen’s Bench, $232,300 each.
Marginal note:Court of Appeal and Court of Queen’s Bench for Manitoba
16. The yearly salaries of the judges of the Court of Appeal for Manitoba and of Her Majesty’s Court of Queen’s Bench for Manitoba are as follows:
(a) the Chief Justice of Manitoba, $254,600;
(b) the six Judges of Appeal, $232,300 each;
(c) the Chief Justice, the Senior Associate Chief Justice and the Associate Chief Justice of the Court of Queen’s Bench, $254,600 each; and
(d) the 30 puisne judges of the Court of Queen’s Bench, $232,300 each.
Marginal note:Court of Appeal and Supreme Court of British Columbia
17. The yearly salaries of the judges of the Court of Appeal for British Columbia and of the Supreme Court of British Columbia are as follows:
(a) the Chief Justice of British Columbia, $254,600;
(b) the 12 Justices of Appeal, $232,300 each;
(c) the Chief Justice and the Associate Chief Justice of the Supreme Court, $254,600 each; and
(d) the 81 other judges of the Supreme Court, $232,300 each.
Marginal note:Supreme Court of Prince Edward Island
18. The yearly salaries of the judges of the Supreme Court of Prince Edward Island are as follows:
(a) the Chief Justice of Prince Edward Island, $254,600;
(b) the two other judges of the Appeal Division, $232,300 each;
(c) the Chief Justice of the Trial Division, $254,600; and
(d) the three other judges of the Trial Division, $232,300 each.
Marginal note:Court of Appeal and Court of Queen’s Bench for Saskatchewan
19. The yearly salaries of the judges of the Court of Appeal for Saskatchewan and of Her Majesty’s Court of Queen’s Bench for Saskatchewan are as follows:
(a) the Chief Justice of Saskatchewan $254,600;
(b) the six Judges of Appeal, $232,300 each;
(c) the Chief Justice of the Court of Queen’s Bench, $254,600; and
(d) the 29 other judges of the Court of Queen’s Bench, $232,300 each.
Marginal note:Court of Appeal and Court of Queen’s Bench of Alberta
20. The yearly salaries of the judges of the Court of Appeal of Alberta and of the Court of Queen’s Bench of Alberta are as follows:
(a) the Chief Justice of Alberta, $254,600;
(b) the 10 Justices of Appeal, $232,300 each;
(c) the Chief Justice and the Associate Chief Justice of the Court of Queen’s Bench, $254,600 each; and
(d) the 55 other Justices of the Court of Queen’s Bench, $232,300 each.
Marginal note:Supreme Court of Newfoundland and Labrador
21. The yearly salaries of the judges of the Supreme Court of Newfoundland and Labrador are as follows:
(a) the Chief Justice of Newfoundland and Labrador, $254,600;
(b) the five Judges of Appeal, $232,300 each;
(c) the Chief Justice of the Trial Division, $254,600; and
(d) the 18 other judges of the Trial Division, $232,300 each.
Marginal note:1999, c. 3, s. 72; 2001, c. 7, s. 14; 2002, c. 7, s. 189
2. Subsections 22(1) to (2.1) of the Act are replaced by the following:
Marginal note:Supreme Court of Yukon
22. (1) The yearly salaries of the judges of the Supreme Court of Yukon are as follows:
(a) the senior judge, $254,600; and
(b) the other judge, $232,300.
Marginal note:Supreme Court of the Northwest Territories
(2) The yearly salaries of the judges of the Supreme Court of the Northwest Territories are as follows:
(a) the senior judge, $254,600; and
(b) the two other judges, $232,300 each.
Marginal note:Nunavut Court of Justice
(2.1) The yearly salaries of the judges of the Nunavut Court of Justice are as follows:
(a) the senior judge, $254,600; and
(b) the two other judges, $232,300 each.
Marginal note:1992, c. 51, s. 7(4)
3. Paragraph 24(6)(a) of the Act is replaced by the following:
(a) in relation to each of the Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Saskatchewan, Alberta and Newfoundland and Labrador, the Court of Appeal of the Province; and
Marginal note:2001, c. 7, s. 16
4. (1) Subsection 25(1) of the Act is replaced by the following:
Marginal note:Annual adjustment of salary
25. (1) The yearly salaries referred to in sections 9 to 22 apply in respect of the twelve month period commencing April 1, 2004.
Marginal note:2001, c. 7, s. 16
(2) The portion of subsection 25(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Annual adjustment of salary
(2) The salary annexed to an office of judge in sections 9 to 22 for the twelve month period commencing April 1, 2005, and for each subsequent twelve month period, shall be the amount obtained by multiplying
Marginal note:2001, c. 7, s. 16
(3) Paragraph 25(3)(a) of the Act is replaced by the following:
(a) in relation to any twelve month period in respect of which the salary is to be determined, the “first adjustment year” is the most recent twelve month period for which the Industrial Aggregate is available on the first day of the period in respect of which the salary is to be determined, and the “second adjustment year” is the twelve month period immediately preceding the first adjustment year; and
Marginal note:2001, c. 7, s. 18
5. Subsection 26.3(2) of the Act is replaced by the following:
Marginal note:Entitlement to payment of costs
(2) A representative of the judiciary identified under subsection (1) who participates in an inquiry of the Commission is entitled to be paid, out of the Consolidated Revenue Fund, two thirds of the costs determined under subsection (3) in respect of his or her participation.
Marginal note:2002, c. 7, s. 190(1)
6. (1) Subsection 27(2) of the Act is replaced by the following:
Marginal note:Additional allowance for northern judges
(2) On and after April 1, 2004, there shall be paid to each judge of the Supreme Court of Newfoundland and Labrador resident in Labrador and each judge of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice who is in receipt of a salary under this Act, in addition to the allowance provided by subsection (1), a non-accountable yearly allowance of $12,000 as compensation for the higher cost of living in Labrador and in the territories.
Marginal note:2001, c. 7, s. 19(2); 2002, c. 7, ss. 190 and 277(E), c. 8, s. 86
(2) Subsections 27(6) and (7) of the Act are replaced by the following:
Marginal note:Representational allowance
(6) On and after April 1, 2004, each of the following judges is entitled to be paid, as a representational allowance, reasonable travel and other expenses actually incurred by the judge or the spouse or common-law partner of the judge in discharging the special extra-judicial obligations and responsibilities that devolve on the judge, to the extent that those expenses may not be reimbursed under any other provision of this Act and their aggregate amount does not exceed in any year the maximum amount indicated below in respect of the judge:
(a) the Chief Justice of Canada, $18,750;
(b) each puisne judge of the Supreme Court of Canada, $10,000;
(c) the Chief Justice of the Federal Court of Appeal and each chief justice described in sections 12 to 21 as the chief justice of a province, $12,500;
(d) each other chief justice referred to in sections 10 to 21, $10,000;
(e) the Chief Justices of the Court of Appeal of Yukon, the Court of Appeal of the Northwest Territories and the Court of Appeal of Nunavut, and the senior judges of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice, $10,000 each;
(f) the Chief Justice of the Court Martial Appeal Court of Canada, $10,000; and
(g) each regional senior judge of the Superior Court of Justice in and for the Province of Ontario, $5,000.
(3) The definition “chief justice” in subsection 27(9) of the Act is replaced by the following:
“chief justice”
« juge en chef »
“chief justice”, except in paragraphs (6)(a) and (c), includes a senior associate chief justice and an associate chief justice;
Marginal note:R.S., c. 16 (3rd Supp.), s. 3; 2002, c. 8, s. 87(1)
7. Subsections 28(1) and (2) of the Act are replaced by the following:
Marginal note:Federal Courts and Tax Court
28. (1) If a judge of the Federal Court of Appeal, the Federal Court or the Tax Court of Canada notifies the Minister of Justice of Canada of his or her election to give up regular judicial duties and hold office only as a supernumerary judge, the judge shall hold the office of supernumerary judge of that Court from the time notice is given until he or she reaches the age of retirement, resigns or is removed from or otherwise ceases to hold office, or until the expiry of 10 years from the date of the election, whichever occurs earlier, and shall be paid the salary annexed to that office.
Marginal note:Restriction on election
(2) An election may be made under subsection (1) only by a judge
(a) who has continued in judicial office for at least 15 years and whose combined age and number of years in judicial office is not less than 80; or
(b) who has attained the age of 70 years and has continued in judicial office for at least 10 years.
Marginal note:2002, c. 8, s. 88(1)(E)
8. Subsections 29(1) and (2) of the Act are replaced by the following:
Marginal note:Provincial superior courts
29. (1) If the legislature of a province has enacted legislation establishing for each office of judge of a superior court of the province the additional office of supernumerary judge of the court, and a judge of that court notifies the Minister of Justice of Canada and the attorney general of the province of the judge’s election to give up regular judicial duties and hold office only as a supernumerary judge, the judge shall hold the office of supernumerary judge from the time notice is given until he or she reaches the age of retirement, resigns or is removed from or otherwise ceases to hold office, or until the expiry of 10 years from the date of the election, whichever occurs earlier, and shall be paid the salary annexed to that office.
Marginal note:Conditions
(2) An election under subsection (1) may only be made by a judge
(a) who has continued in judicial office for at least 15 years and whose combined age and number of years in judicial office is not less than 80; or
(b) who has attained the age of 70 years and has continued in judicial office for at least 10 years.
Marginal note:2002, c. 7, s. 193(1)
9. (1) Paragraph 40(1)(c) of the Act is replaced by the following:
(c) a judge of the Supreme Court of Yukon, the Supreme Court of the Northwest Terri- tories or the Nunavut Court of Justice who moves to a place of residence in one of the ten provinces or in another territory during the period of two years
(i) beginning two years before the judge’s date of eligibility to retire, or
(ii) if no removal allowance is paid in respect of a move made during the period described in subparagraph (i), beginning on the judge’s date of retirement or resignation from office;
Marginal note:2002, c. 8, s. 93(2)
(2) Paragraph 40(1)(e) of the Act is replaced by the following:
(e) a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada who moves to a place of residence in Canada outside the area within which the judge was required to reside by the Act establishing that Court, during the period of two years
(i) beginning two years before the judge’s date of eligibility to retire, or
(ii) if no removal allowance is paid in respect of a move made during the period described in subparagraph (i), beginning on the judge’s date of retirement or resignation from office; and
(3) Section 40 of the Act is amended by adding the following after subsection (2):
Marginal note:Expenses of spouse or common-law partner
(2.1) Where a removal allowance is payable to a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada under paragraph (1)(a), an employment assistance allowance shall be paid to the judge’s spouse or common-law partner up to a maximum of $5,000 for expenses actually incurred by the spouse or common-law partner in pursuing employment in the judge’s new place of residence.
Marginal note:2001, c. 7, s. 20
10. Paragraph 41.1(2)(c) of the Act is replaced by the following:
(c) the representational allowance referred to in subsection 27(6) for the period, as though the appropriate maximum referred to in that subsection were an amount that bears the same ratio to that allowance that the number of months in the period bears to twelve.
Marginal note:1998, c. 30, s. 7(2); 2002, c. 8, s. 95(1)(E)
11. (1) Paragraph 42(1)(e) of the Act is replaced by the following:
(e) a judge of the Supreme Court of Canada who has continued in judicial office on that Court for at least 10 years and resigns from office,
Marginal note:2002, c. 8, par. 111(a)(E)
(2) Subsection 42(3) of the French version of the Act is replaced by the following:
Marginal note:Durée des pensions
(3) Le juge touche la pension à compter de la date à laquelle il cesse d’occuper son poste, et ce, jusqu’à son décès.
Marginal note:2001, c. 7, s. 21
12. Subsection 43.1(2) of the Act is replaced by the following:
Marginal note:Calculation of amount of deferred annuity
(2) The amount of the deferred annuity shall be two thirds of the amount of the salary annexed to the judge’s office at the time of the election multiplied by a fraction of which
(a) the numerator is the number of years, to the nearest one tenth of a year, during which the judge has continued in judicial office, and
(b) the denominator is the number of years, to the nearest one tenth of a year, during which the judge would have been required to continue in judicial office in order to be eligible to be granted an annuity under paragraph 42(1)(a) or (d).
Marginal note:2000, c. 12, par. 169(a)
13. Subsection 44(2) of the Act is replaced by the following:
Marginal note:Where judge receiving annuity
(2) Subject to this section, where a judge who, before, on or after July 11, 1955, was granted a pension or annuity under this Act or any other Act of Parliament providing for the grant of pensions or annuities to judges died or dies after July 10, 1955, the Governor in Council shall grant to the survivor of the judge
(a) an annuity equal to one half of the pension or annuity granted to the judge, commencing on July 18, 1983 or immediately after the death of the judge, whichever is later, and continuing during the life of the survivor; or
(b) if a division of the judge’s annuity benefits has been made under section 52.14, an annuity equal to one half of the annuity that would have been granted to the judge had the annuity benefits not been divided, commencing immediately after the death of the judge and continuing during the life of the survivor.
Marginal note:2002, c. 8, s. 99
14. Subsection 50(2.1) of the Act is replaced by the following:
Marginal note:Adjustment of contributions
(2.1) A supernumerary judge, a judge who continues in judicial office after having been in judicial office for at least 15 years and whose combined age and number of years in judicial office is not less than 80, a judge of the Supreme Court of Canada who has continued in judicial office on that Court for at least 10 years, or a judge referred to in section 41.1 is not required to contribute under subsections (1) and (2) but is required to contribute, by reservation from salary, to the Supplementary Retirement Benefits Account at a rate of one per cent of his or her salary.
15. The Act is amended by adding the following after section 52:
Division of Judge’s Annuity Benefits on Conjugal Breakdown
Marginal note:Definitions
52.1 The following definitions apply in this section and in sections 52.11 to 52.22.
“agreement”
« accord »
“agreement” means an agreement referred to in subparagraph 52.11(2)(b)(ii).
“annuity”
« pension »
“annuity” means an annuity payable under section 42, 43 or 43.1.
“annuity benefit”
« prestation de pension »
“annuity benefit” means an annuity or a return of contributions payable under section 51, and includes amounts payable to a judge under the Supplementary Retirement Benefits Act.
“application”
« demande »
“application” means an application made under subsection 52.11(1).
“court order”
« ordonnance »
“court order” means an order referred to in paragraph 52.11(2)(a) or subparagraph 52.11(2)(b)(i).
“interested party”
« intéressé »
“interested party”, in relation to an application for division of a judge’s annuity benefits, means the judge or the spouse, former spouse or former common-law partner with whom those benefits would be divided under the application.
“judge”
« juge »
“judge” includes a former judge who has been granted an annuity.
“Minister”
« ministre »
“Minister” means the Minister of Justice of Canada.
“prescribed”
Marginal note:Version anglaise seulement
“prescribed” means prescribed by regulation.
“spouse”
« époux »
“spouse”, in relation to a judge, includes a person who is a party to a void marriage with the judge.
Marginal note:Application for division
52.11 (1) A judge or a spouse, former spouse or former common-law partner of a judge may, in the circumstances described in subsection (2), apply in accordance with the regulations for the division of the judge’s annuity benefits between the judge and the spouse, former spouse or former common-law partner.
Marginal note:When application may be made
(2) An application may be made under the following circumstances:
(a) where a court of competent jurisdiction in Canada, in proceedings in relation to divorce, annulment of marriage or separation, has made an order that provides for the annuity benefits to be divided between the interested parties; or
(b) where the interested parties have been living separate and apart for a period of one year or more and, either before or after they began to live separate and apart,
(i) a court of competent jurisdiction in Canada has made an order that provides for the annuity benefits to be divided between them, or
(ii) the interested parties have entered into a written agreement that provides for the annuity benefits to be divided between them.
Marginal note:Notice to interested parties
(3) The Minister shall send to each interested party in accordance with the regulations a notice of the receipt of an application.
Marginal note:Objections by interested parties
52.12 (1) An interested party who objects to the division of annuity benefits on any of the grounds described in subsection (2) may submit a notice of objection in writing in accordance with the regulations within 90 days after the day on which notice of the receipt of the application is sent to the interested party under subsection 52.11(3).
Marginal note:Grounds for objection
(2) The grounds for objection are as follows:
(a) the court order or agreement on which the application is based has been varied or is of no force or effect;
(b) the terms of the court order or agreement have been or are being satisfied by other means; or
(c) proceedings have been commenced in a court of competent jurisdiction in Canada to appeal or review the court order or challenge the terms of the agreement.
Marginal note:Documentary evidence
(3) An interested party who submits a notice of objection shall include with that notice documentary evidence to establish the grounds for objection.
Marginal note:Approval of division
52.13 (1) Subject to subsections (2) and (3), the Minister shall, as soon as is practicable after the Minister is satisfied that an application meets the requirements of this Act, approve the division of annuity benefits in respect of which the application is made.
Marginal note:When decision to be deferred
(2) When an interested party submits a notice of objection in accordance with section 52.12, the Minister shall
(a) if the objection is made on the grounds referred to in paragraph 52.12(2)(a) or (b), defer a decision on the application until the Minister is able to ascertain to his or her satisfaction whether those grounds have been established; and
(b) if the objection is made on the grounds referred to in paragraph 52.12(2)(c), defer a decision on the application until the final disposition of the proceedings on which those grounds are based.
Marginal note:Refusal of division
(3) The Minister shall refuse to approve the division of annuity benefits if
(a) the application is withdrawn in accordance with the regulations;
(b) a notice of objection has been submitted on grounds referred to in paragraph 52.12(2)(a) or (b) and the Minister is satisfied that those grounds have been established and constitute sufficient reason to refuse the division;
(c) a notice of objection has been submitted on grounds referred to in paragraph 52.12(2)(c) and the court order or agreement is of no force or effect as a result of the proceedings referred to in that paragraph;
(d) the period of cohabitation of the judge and the spouse, former spouse or former common-law partner cannot be determined under subsection 52.14(6); or
(e) the Minister is satisfied, based on evidence submitted by any person, that it would not be just to approve the division.
Marginal note:Exception
(4) Notwithstanding subsection (3), the Minister may approve the division of annuity benefits on the basis of an order of a court issued pursuant to any proceedings referred to in paragraph 52.12(2)(c).
Marginal note:Transitional
(5) The Minister may approve the division of the annuity benefits even though the court order or agreement on which the application is based was made or entered into before the day on which subsection 52.11(1) comes into force.
Marginal note:Division of annuity benefits
52.14 (1) Subject to subsections (3) and (3.1), where the Minister approves the division of the annuity benefits of a judge, the spouse, former spouse or former common-law partner shall be accorded a share of the annuity benefits consisting of
(a) an amount representing 50% of a proportion, determined in accordance with subsection (2), of the value of the annuity that is attributed, in accordance with the regulations, to the period subject to division; or
(b) if the terms of the court order or agreement on which the application for division is based provide for the payment to the spouse, former spouse or former common-law partner of a share of annuity benefits that is less than the amount determined under paragraph (a), that lesser share.
Marginal note:Proportion of annuity value
(2) The proportion of the value of an annuity referred to in paragraph (1)(a) is
(a) subject to paragraph (b), the period subject to division divided by the judge’s number of years of service until the judge’s actual date of retirement or, in the case of a judge who has not yet retired, until the judge’s expected date of retirement determined in accordance with the regulations; or
(b) in the case of a judge who had resigned or been removed from office by reason of an infirmity, the quotient obtained by dividing
(i) the period, measured to the nearest one tenth of a year, from the beginning of the period subject to division to the earlier of the end of the period of cohabitation and the judge’s expected date of retirement if the infirmity had not occurred, determined in accordance with the regulations,
by
(ii) the judge’s number of years of service up to the judge’s expected date of retirement if the infirmity had not occurred, determined in accordance with the regulations.
Marginal note:Return of contributions
(3) Subject to subsections (3.1) and (4), where the Minister approves the division of the annuity benefits of a judge who was not eligible to be granted an annuity at the end of the period subject to division, the spouse, former spouse or former common-law partner shall be accorded a share of the annuity benefits consisting of
(a) an amount equal to 50% of the contributions made by the judge under section 50 during the period subject to division plus 50% of any interest payable on those contributions; or
(b) if the terms of the court order or agreement on which the application for division is based provide for the payment to the spouse, former spouse or former common-law partner of a share of annuity benefits that is less than the amount determined under paragraph (a), that lesser share.
Marginal note:Return of contributions — infirm annuitant
(3.1) Subject to subsection (4), where the Minister approves the division of the annuity benefits of a judge who had been granted an annuity by reason of an infirmity but was not otherwise eligible to be granted an annuity at the end of the period subject to division, the spouse, former spouse or former common-law partner shall be accorded a share of the annuity benefits consisting of
(a) an amount equal to 50% of the contributions that would have been made during the period described by subparagraph (2)(b)(i) if the judge had continued in office, plus 50% of any interest payable on those contributions; or
(b) if the terms of the court order or agreement on which the application for division is based provide for the payment to the spouse, former spouse or former common-law partner of a share of annuity benefits that is less than the amount determined under paragraph (a), that lesser share.
Marginal note:Election by spouse
(4) A judge’s spouse, former spouse or former common-law partner who is entitled to be accorded a share of the judge’s annuity benefits under subsection (3) or (3.1) may elect in the manner prescribed by the regulations, in lieu of receiving that share, to receive — at the time the judge becomes eligible to be granted an annuity, or at the time the judge would have become eligible to be granted an annuity had the judge not resigned or been removed from office by reason of an infirmity — a share of the annuity benefits for which the judge is or would have been eligible, determined as provided in subsection (1).
Marginal note:Death or resignation of judge
(5) Where an election has been made under subsection (4) and, before becoming eligible to be granted an annuity, the judge dies, resigns, is removed from office or otherwise ceases to hold office, the spouse, former spouse or former common-law partner shall instead be paid immediately the portion of the judge’s contributions to which the spouse was otherwise entitled under subsection (3) or (3.1).
Marginal note:Determination of periods of division and cohabitation
(6) For the purposes of this section and sections 52.15 and 52.16,
(a) a period subject to division is the portion of a period of cohabitation during which a judge held office under this Act, measured in years to the nearest one tenth of a year; and
(b) a period of cohabitation is the period during which interested parties cohabited, as specified by the court order or agreement on which an application for division is based or, if none is specified, as determined in accordance with the regulations on the basis of evidence submitted by either or both of the interested parties.
Marginal note:Death of spouse, former spouse or former common-law partner
(7) A share of annuity benefits that cannot be accorded under subsection (1) by reason only of the death of the spouse, former spouse or former common-law partner shall be paid to that person’s estate or succession.
Marginal note:Adjustment of accrued benefits
(8) Where the Minister approves the division of a judge’s annuity benefits, the annuity benefits payable to the judge under this Act shall be adjusted in accordance with the regulations.
Marginal note:Notice of division
(9) The Minister shall send a notice of the division of annuity benefits in the prescribed manner to each interested party.
Marginal note:Transfer and payment of share
52.15 (1) The spouse’s, former spouse’s or former common-law partner’s share of a judge’s annuity benefits shall be accorded by
(a) the transfer of the specified portion of that share to a retirement savings plan established for the spouse, former spouse or former common-law partner that is of the prescribed kind for the purposes of section 26 of the Pension Benefits Standards Act, 1985; and
(b) the payment of the remainder of that share, if any, to the spouse, former spouse or former common-law partner.
Marginal note:Calculation of specified portion
(2) For the purpose of paragraph (1)(a), the specified portion of a spouse’s, former spouse’s or former common-law partner’s share of a judge’s annuity benefits is
(a) if that share consists of a portion of the judge’s contributions, that portion; or
(b) in any other case, the amount determined by the formula
(A x B x C) / D
where
- A
- is the share of the annuity benefits,
- B
- is the period subject to division,
- C
- is the defined benefit limit, within the meaning of regulations made under the Income Tax Act, for the calendar year in which the share is accorded, and
- D
- is the portion of the annuity that is attributed, in accordance with the regulations, to the period subject to division.
Marginal note:Tax treatment
(3) For the purposes of the Income Tax Act, an amount transferred to a retirement savings plan in accordance with paragraph (1)(a) is deemed to be an amount transferred from a registered pension plan in accordance with subsection 147.3(5) of that Act.
Marginal note:Further divisions precluded
52.16 Where a division of annuity benefits is made in respect of a period subject to division under section 52.14, no further divisions may be made under that section in respect of that period.
Marginal note:Amounts transferred in error
52.17 Where the amount transferred or paid in respect of a spouse, former spouse or former common-law partner, or paid to the estate or succession of a deceased spouse, former spouse or former common-law partner, under section 52.14 or 52.15 exceeds the amount that the spouse, former spouse or former common-law partner was entitled to have transferred or paid or the estate or succession was entitled to be paid, the amount in excess constitutes a debt due to Her Majesty in right of Canada by that spouse, former spouse or former common-law partner or that estate or succession.
Marginal note:Amounts paid before adjustment
52.18 Where an adjustment is made under subsection 52.14(8) and an amount is or has been paid to a judge that exceeds the amount to which the judge is or would have been entitled under this Act after the effective date of that adjustment, the amount in excess constitutes a debt due to Her Majesty in right of Canada by the judge and may be recovered at any time by set-off against any annuity benefit that is payable to the judge under this Act, without prejudice to any other recourse available to Her Majesty in right of Canada with respect to its recovery.
Marginal note:Void transactions
52.19 (1) Amounts that a spouse, former spouse or former common-law partner is or may become entitled to under section 52.14 are not capable of being assigned, charged, anticipated or given as security, and any transaction that purports to assign, charge, anticipate or give as security any such amount is void.
Marginal note:Exemption from attachment, etc.
(2) Amounts that a spouse, former spouse or former common-law partner is or may become entitled to under section 52.14 are exempt from attachment, seizure and execution, either at law or in equity.
Marginal note:Access of spouse, etc. to division of benefits
52.2 Notwithstanding any other provision of this Act, a court of competent jurisdiction may order, for any period that the court determines, that no action be taken by the Minister under this Act that may prejudice the ability of the spouse, common-law partner, former spouse or former common-law partner to make an application or obtain the division of the judge’s annuity benefits under this Act.
Marginal note:Information for spouse, etc. re benefits
52.21 Subject to the regulations, the Minister shall, at the request of a spouse, common-law partner, former spouse or former common-law partner of a judge, provide that person with information prescribed by the regulations concerning the benefits that are or may become payable to or in respect of that judge under this Act.
Marginal note:Regulations
52.22 The Governor in Council may make regulations
(a) respecting the manner of making an application, the information that is to be provided in it and the documents that are to accompany it;
(b) prescribing the circumstances in which interested parties are deemed to have been living separate and apart for the purposes of paragraph 52.11(2)(b);
(c) prescribing circumstances in which a person may make an application or object to an application on behalf of another person, or may act on behalf of another person in proceeding with an application made by that other person;
(d) prescribing circumstances in which, the manner in which and the conditions under which the personal representative or the liquidator of the succession of a deceased judge or of a deceased spouse, former spouse or former common-law partner of a judge may make or object to an application or may proceed with an application that was made by or on behalf of the judge, spouse, former spouse or former common-law partner;
(e) when regulations are made under paragraph (c) or (d), respecting the manner in which and the extent to which any provision of this Act applies to a person referred to in that paragraph or in the circumstances prescribed by those regulations, and adapting any provision of this Act to those persons or circumstances;
(f) prescribing circumstances in which, the manner in which and the conditions under which a spouse, former spouse or former common-law partner of a judge may make an application after the death of the judge;
(g) respecting the notice of receipt of applications to be given to interested parties under subsection 52.11(3);
(h) respecting the withdrawal of applications;
(i) respecting the manner of submitting notices of objection under subsection 52.12(1);
(j) for determining the value of an annuity to be attributed to a period subject to division, for the purposes of subsection 52.14(1);
(k) for determining the expected date of retirement of a judge, for the purposes of subsections 52.14(2) and (3.1);
(l) respecting the actuarial assumptions on which the determinations made under paragraphs (j) and (k) are to be based;
(m) prescribing the manner in which a judge’s spouse, former spouse or former common-law partner may make an election under subsection 52.14(4), and respecting the notification of a judge of such an election;
(n) prescribing, for the purposes of paragraph 52.14(6)(b), the manner of determining the period during which interested parties cohabited;
(o) respecting the adjustment of the annuity benefits payable to a judge under subsection 52.14(8), including the determination of the effective date of the adjustment;
(p) generally respecting the division of the annuity benefits of a judge who resigns or is removed from office by reason of an infirmity;
(q) respecting the manner in which and the extent to which any provision of this Act applies, notwithstanding the other provisions of this Act, to a judge, to a spouse, former spouse, common-law partner or former common-law partner of a judge or to any other person when annuity benefits are divided under section 52.14, and adapting any provision of this Act to those persons;
(r) for determining the portion of an annuity to be attributed to a period subject to division, for the purposes of subsection 52.15(2);
(s) for the purposes of section 52.21, respecting the manner in which a request for information is to be made by a spouse, former spouse, common-law partner or former common-law partner of a judge, prescribing the information that is to be provided to that person concerning the benefits that are or may become payable to or in respect of the judge and specifying circumstances in which a request may be refused;
(t) prescribing remedial action that may be taken in prescribed circumstances in response to administrative error or the provision of erroneous information;
(u) prescribing any matter or thing that may be prescribed under sections 52.1 to 52.21; and
(v) generally for carrying out the purposes and provisions of sections 52.1 to 52.21 and this section.
Marginal note:1989, c. 8, s. 13
16. Subsection 53(1) of the Act is replaced by the following:
Marginal note:Amounts payable out of C.R.F.
53. (1) The salaries, allowances and annuities payable under this Act and the amounts payable under sections 46.1, 51 and 52.15 shall be paid out of the Consolidated Revenue Fund.
PART 2AMENDMENTS TO OTHER ACTS
1996, c. 10Canada Transportation Act
Marginal note:2002, c. 8, s. 122
17. Subsection 33(1) of the Canada Transportation Act is replaced by the following:
Marginal note:Enforcement of decision or order
33. (1) A decision or an order of the Agency may be made an order of the Federal Court or of any superior court and is enforceable in the same manner as such an order.
R.S., c. C-50; 1990, c. 8, s. 21Crown Liability and Proceedings Act
Marginal note:1990, c. 8, s. 32
18. (1) Paragraph 34(a) of the Crown Liability and Proceedings Act is replaced by the following:
(a) prescribing rules of practice and procedure in respect of proceedings by, against or involving the Crown, including tariffs of fees and costs;
Marginal note:1990, c. 8, s. 32
(2) Paragraphs 34(d) and (e) of the Act are replaced by the following:
(d) making applicable to any proceedings by, against or involving the Crown all or any of the rules of evidence applicable in similar proceedings between subject and subject; and
(e) generally respecting proceedings by, against or involving the Crown.
1996, c. 23Employment Insurance Act
Marginal note:2002, c. 8, par. 182(1)(o)
19. Section 105 of the Employment Insurance Act is replaced by the following:
Marginal note:Decision final
105. The decision of the Tax Court of Canada under section 103 is final and, except for an appeal under the Federal Courts Act, is not subject to appeal to or review by any court.
R.S., c. F-7; 2002, c. 8, s. 14Federal Courts Act
Marginal note:2002, c. 8, s. 16
20. Section 5.4 of the Federal Courts Act is replaced by the following:
Marginal note:Judges from Quebec
5.4 At least five of the judges of the Federal Court of Appeal and at least 10 of the judges of the Federal Court must be persons who have been judges of the Court of Appeal or of the Superior Court of the Province of Quebec, or have been members of the bar of that Province.
Marginal note:2002, c. 8, s. 16
21. Subsection 6(2) of the Act is replaced by the following:
Marginal note:Absence or incapacity of a Chief Justice
(2) If the office of Chief Justice of the Federal Court of Appeal or the office of the Chief Justice of the Federal Court is vacant, or the Chief Justice of either court is absent from Canada or is for any reason unable or unwilling to act, the powers and duties of the Chief Justice shall be exercised and performed by
(a) the judge of the Federal Court of Appeal or of the Federal Court, as the case may be, who has been designated for that purpose by the Chief Justice of that Court; or
(b) if no judge has been so designated, or if the judge so designated is absent from Canada or is unable or unwilling to act, the senior judge of the same court who is in Canada and is able and willing to act and who has not elected to hold office as a supernumerary judge under section 28 of the Judges Act.
22. Subsection 7(2) of the English version of the Act is replaced by the following:
Marginal note:Rota of judges
(2) Notwithstanding subsection (1), the Rules may provide for a rota of judges in order to ensure continuity of judicial availability in any centre where the volume of work or other circumstances make such an arrangement expedient.
23. Subsection 12(2) of the Act is repealed.
Marginal note:2002, c. 8, s. 43(1)
24. Paragraph 45.1(1)(b) of the Act is replaced by the following:
(b) three judges designated by the Chief Justice of the Federal Court of Appeal, and five judges and one prothonotary designated by the Chief Justice of the Federal Court;
R.S., c. P-10; 2001, c. 4, s. 113(F)Pesticide Residue Compensation Act
Marginal note:1990, c. 8, s. 60
25. Subsection 14(1) of the Pesticide Residue Compensation Act is replaced by the following:
Marginal note:Assessor and Deputy Assessors
14. (1) The Governor in Council may, from among the judges of the Federal Court and the judges of the superior, district or county courts of the provinces, appoint an Assessor and the number of Deputy Assessors that the Governor in Council considers necessary to hear and determine appeals from compensation awards made under this Act or under any other Act to which this Part is made applicable and, subject to this Act, may prescribe their jurisdiction.
R.S., c. 32 (4th Supp.)Railway Safety Act
Marginal note:2002, c. 8, s. 168
26. Subsection 34(1) of the Railway Safety Act is replaced by the following:
Marginal note:Enforcement through court
34. (1) An order or emergency directive made by the Minister may be made an order of the Federal Court or any superior court and shall be enforced in the same manner as an order of the court.
R.S., c. T-2Tax Court of Canada Act
Marginal note:2002, c. 9, s. 10(3)
27. Subsection 12(4) of the Tax Court of Canada Act is replaced by the following:
Marginal note:Extensions of time
(4) The Court has exclusive original jurisdiction to hear and determine applications for extensions of time under section 45 or 47 of the Air Travellers Security Charge Act, subsection 28(1) of the Canada Pension Plan, section 33.2 of the Cultural Property Export and Import Act, section 97.51 or 97.52 of the Customs Act, subsection 103(1) of the Employment Insurance Act, section 197 or 199 of the Excise Act, 2001, section 304 or 305 of the Excise Tax Act, or section 166.2 or 167 of the Income Tax Act.
Marginal note:R.S., c. 51 (4th Supp.), s. 5; 1998, c. 19, s. 291(1)
28. Section 17.2 of the Act is replaced by the following:
Marginal note:How proceeding instituted
17.2 (1) Unless the Act under which the proceeding arises provides otherwise, a proceeding in respect of which this section applies shall be instituted by filing an originating document in the form and manner set out in the rules of Court and by paying, in accordance with the rules, any required filing fee.
Marginal note:Filing date
(2) An originating document is deemed to be filed on the day on which it is received by the Registry of the Court.
Marginal note:Service of originating document
(3) After the proceeding has been instituted, an officer of the Registry of the Court shall, on behalf of the party who instituted the proceeding and in accordance with the rules of the Court, serve the originating document without delay on Her Majesty in right of Canada by transmitting a copy to the office of the Deputy Attorney General of Canada.
Marginal note:Certificate
(4) An officer of the Registry of the Court shall, in accordance with the rules of the Court, deliver or forward to the party who instituted the proceeding a certificate indicating the date of filing of the originating document and the date of service on Her Majesty in right of Canada.
Marginal note:Certificate to be evidence
(5) A certificate is evidence of the dates of filing and service.
Marginal note:R.S., c. 51 (4th Supp.), s. 5; 1998, c. 19, s. 292(1)
29. Section 18.15 of the Act is replaced by the following:
Marginal note:How proceeding instituted
18.15 (1) An appeal referred to in section 18 shall be instituted by filing an originating document with the Registry of the Court in the manner set out in the rules of Court and by paying, in accordance with the rules, any required filing fee. The document shall set out, in general terms, the reasons for the appeal and the relevant facts, but no special form is required unless the Act under which the appeal arises provides otherwise.
Marginal note:Filing date
(2) An originating document is deemed to be filed on the day on which it is received by the Registry of the Court.
Marginal note:Hearing
(3) Notwithstanding the provisions of the Act under which the appeal arises, the Court is not bound by any legal or technical rules of evidence in conducting a hearing and the appeal shall be dealt with by the Court as informally and expeditiously as the circumstances and considerations of fairness permit.
Marginal note:1998, c. 19, s. 283
30. Subsection 18.26(1) of the Act is replaced by the following:
Marginal note:Costs
18.26 (1) The Court may, subject to the rules, award costs. In particular, the Court may award costs to the appellant if the judgment reduces the aggregate of all amounts in issue or the amount of interest in issue, or increases the amount of loss in issue, as the case may be, by more than one half.
Marginal note:R.S., c. 51 (4th Supp.) s. 5; 1990, c. 45, s. 59; 1998, c. 19, s. 294
31. Section 18.27 of the Act is replaced by the following:
Marginal note:Regulations
18.27 The Governor in Council may make regulations increasing the amount in dispute referred to in paragraphs 18.3002(3)(c) and 18.3008(c) and subparagraph 18.3009(1)(c)(i) to any amount that does not exceed $12,000.
Marginal note:1998, c. 19, s. 295(1)
32. The portion of subsection 18.29(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Other applications
18.29 (1) The provisions of sections 18.14 and 18.15, other than the reference to filing fees, subsection 18.18(1), section 18.19, subsection 18.22(3) and sections 18.23 and 18.24 apply, with any modifications that the circumstances require, in respect of appeals arising under
Marginal note:2002, c. 22, s. 408(15)
33. The portion of subsection 18.3009(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Costs
18.3009 (1) In an appeal referred to in section 18.3001, the Court may, subject to the rules of Court, award costs. In particular, the Court may award costs to the person who brought the appeal if the judgment reduces the amount in dispute by more than one half and
Marginal note:2002, c. 8, s. 77
34. Subsection 19.2(3) of the English version of the Act is replaced by the following:
Marginal note:Notice of appeal
(3) The Attorney General of Canada and the attorney general of each province are entitled to notice of any appeal made in respect of the constitutional question.
COMING INTO FORCE
Marginal note:Order in council
35. (1) Subsections 9(1) and (2) come into force on a day to be fixed by order of the Governor in Council.
Marginal note:Order in council
(2) Sections 13 and 15 come into force on a day to be fixed by order of the Governor in Council.
Marginal note:Order in council
(3) Sections 28 to 30, 32 and 33 come into force on a day to be fixed by order of the Governor in Council.
Marginal note:Section 44.2 of the Judges Act
36. Section 44.2 of the Judges Act, as enacted by section 163 of the Modernization of Benefits and Obligations Act, chapter 12 of the Statutes of Canada, 2000, and replaced by section 24 of An Act to amend the Judges Act and to amend another Act in consequence, chapter 7 of the Statutes of Canada, 2001, and the Optional Survivor Annuity Regulations, made by Order in Council P.C. 2001-1362 on August 1, 2001 and registered as SOR/2001-283, are deemed to have come into force on August 1, 2001.
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