Judges Act (R.S.C., 1985, c. J-1)

Act current to 2017-07-03 and last amended on 2017-06-22. Previous Versions

Division of Judge’s Annuity Benefits on Conjugal Breakdown

Marginal note:Definitions

 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). (accord)

annuity

pension

annuity means an annuity payable under section 42, 43 or 43.1. (pension)

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. (prestation de pension)

application

demande

application means an application made under subsection 52.11(1). (demande)

court order

ordonnance

court order means an order referred to in paragraph 52.11(2)(a) or subparagraph 52.11(2)(b)(i). (ordonnance)

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. (intéressé)

judge

juge

judge includes a former judge who has been granted an annuity. (juge)

Minister

ministre

Minister means the Minister of Justice of Canada. (ministre)

prescribed

Version anglaise seulement

prescribed means prescribed by regulation. (Version anglaise seulement)

spouse

époux

spouse, in relation to a judge, includes a person who is a party to a void marriage with the judge. (époux)

  • 2006, c. 11, s. 15.
Marginal note:Application for division
  •  (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.

  • 2006, c. 11, s. 15.
Marginal note:Objections by interested parties
  •  (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.

  • 2006, c. 11, s. 15.
Marginal note:Approval of division
  •  (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.

  • 2006, c. 11, s. 15.
Marginal note:Division of annuity benefits
  •  (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.

  • 2006, c. 11, s. 15;
  • 2015, c. 3, s. 128(F).
 
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