Optional Survivor Annuity Regulations (SOR/2001-283)

Interpretation

1 The definitions in this section apply in these Regulations.

Act

Act means the Judges Act. (Loi)

Annuity Administrator

Annuity Administrator means

• (a) in the context of an election by a judge of the Supreme Court of Canada, the Registrar of the Supreme Court of Canada appointed under section 12 of the Supreme Court Act; and

• (b) in the context of an election by a judge of any other superior court or the Tax Court of Canada, the Commissioner for Federal Judicial Affairs appointed under section 73 of the Act. (administrateur des pensions viagères)

election

election means an election under section 44.2 of the Act. (choix)

optional survivor annuity

optional survivor annuity means the annuity described in subparagraph 9(b)(iii). (pension viagère facultative du survivant)

Election

• 2 (1) To make an election a judge shall send, to the Annuity Administrator by registered mail, a notice that is dated and signed by the judge and by a witness other than the judge’s spouse or common-law partner, in which the judge indicates

  • (a) whether the judge elects to provide an optional survivor annuity of 30, 40 or 50 per cent of the judge’s annuity;

  • (b) the date of birth of the judge’s spouse or common-law partner; and

  • (c) the date of the marriage of the judge and the judge’s spouse or the date on which the judge began cohabiting in a conjugal relationship with the judge’s common-law partner.

• (2) The notice shall be sent not later than the latest of, as the case may be,

  • (a) one year after the day on which these Regulations come into force;

  • (b) one year after the day on which the judge and the judge’s spouse are married; or

  • (c) two years after the day on which the judge began cohabiting in a conjugal relationship with the judge’s common-law partner.

• (3) If the Annuity Administrator becomes aware that erroneous or misleading information was sent to a judge regarding the period within which the judge could make an election, the amount of the monthly instalments of the judge’s annuity described in subparagraph 9(b)(i), or the amount of the monthly instalments of the optional survivor annuity, the Annuity Administrator shall notify the judge of the corrected information by registered mail.

• (4) If, on the basis of such erroneous or misleading information, the judge had decided not to make an election, the judge may make an election in accordance with subsection (1) within 90 days after the day on which he or she receives the Annuity Administrator’s notice.

• (5) The election under subsection (2) or (4) takes effect on the day the notice is received by the Annuity Administrator.

Documents Required

• 3 (1) The judge shall, within 90 days after the day on which an election is made, send to the Annuity Administrator, by registered mail,

  • (a) the appropriate document referred to in section 4 that is evidence of the date of birth of the judge’s spouse or common-law partner;

  • (b) as the case may be, the appropriate document

    • (i) referred to in section 5 that is evidence of the marriage of the judge and the judge’s spouse, or

    • (ii) referred to in section 6 that is evidence of the commencement of cohabitation in a conjugal relationship of the judge with the judge’s common-law partner; and

  • (c) if the name of the judge’s spouse or common-law partner on a document referred to in paragraph (a) is not the same as the name of the judge’s spouse or common-law partner on a document referred to in paragraph (b), any other document that confirms that the evidence relates to that spouse or common-law partner, or a statutory declaration by which the judge’s spouse or common-law partner declares that the documents are in respect of that spouse or common-law partner.

• (2) An election is deemed not to have been made if any document or statutory declaration required under subsection (1) is not submitted within the period referred to in that subsection. The amount representing the reduction that was made in the judge’s annuity shall be repaid to the judge, together with interest as set out in subsection 44.2(3.1) of the Act.

• 4 (1) Proof of age of the judge’s spouse or common-law partner is established by a birth certificate issued by a civil authority.

• (2) If a birth certificate cannot be obtained, proof of age of the judge’s spouse or common-law partner is established by

  • (a) a statutory declaration by the spouse or common-law partner attesting to his or her date of birth and explaining why the birth certificate cannot be obtained; and

  • (b) a document

    • (i) that was made within five years after the date of birth of the spouse or common-law partner that indicates his or her name and date of birth or age, or

    • (ii) that was made at least 20 years before the day on which the election was made that indicates the date of birth of the spouse or common-law partner, accompanied by a statutory declaration in which a person, other than the judge or the judge’s spouse or common-law partner, attests that the date stated in the document is correct.

• (3) If a document or statutory declaration required under paragraph (2)(b) cannot be obtained, the statutory declaration required under paragraph (2)(a) shall set out the reasons why it cannot be obtained, and that statutory declaration constitutes proof of age for the judge’s spouse or common-law partner.

• 5 (1) Proof of the marriage between the judge and the judge’s spouse is established by a marriage certificate issued by a civil authority.

• (2) If a marriage certificate cannot be obtained, proof of the marriage is established by

  • (a) a statutory declaration by the judge or the judge’s spouse attesting to the date of the marriage and explaining why the marriage certificate cannot be obtained; and

  • (b) a document comparable to a marriage certificate that was issued in relation to the marriage ceremony, or a statutory declaration by a person who attended the marriage ceremony, other than the judge or the judge’s spouse, attesting to the person’s knowledge of the marriage.

6 Proof of the commencement of cohabitation in a conjugal relationship of the judge with the judge’s common-law partner is established by a statutory declaration in which the judge and the common-law partner attest to the date of the commencement of that cohabitation.

Reduction of Judge’s Annuity

7 If a judge makes an election, the reduction to the judge’s annuity for the purposes of subsection 44.2(2) of the Act is equal to the monthly instalments of the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, less the monthly instalments of the judge’s annuity described in subparagraph 9(b)(i).

8 If a judge who opted to receive a deferred annuity has made an election and subsequently opts to receive an immediate annuity, the reduction determined under section 7 shall be revised to take into account the new period during which the monthly instalments are to be reduced.

Calculation of Optional Survivor Annuity

9 If a judge makes an election, the amount of the monthly instalments of the optional survivor annuity is determined by converting the benefits described in paragraph (a) into the benefits described in paragraph (b), namely,

• (a) the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, the death benefit payable under subsection 51(3) of the Act and the benefits payable under the Supplementary Retirement Benefits Act,

into

• (b) the annuities described in subparagraphs (i) to (iii), the death benefit described in subparagraph (iv), the death benefit payable under subsection 51(3) of the Act and the benefits payable under the Supplementary Retirement Benefits Act, namely,

  • (i) an annuity payable to the judge in monthly instalments for the duration of the marriage or cohabitation in a conjugal relationship, beginning on the later of the day on which the election takes effect or the day on which the annuity described in paragraph (a) becomes payable,

  • (ii) an annuity payable to the judge with monthly instalments equal to the monthly instalments that comprise the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, beginning on the day on which the marriage or cohabitation in a conjugal relationship ceases,

  • (iii) an annuity payable to the survivor of the judge in monthly instalments equal to 30, 40 or 50 per cent, as elected by the judge, of the monthly instalments described in subparagraph (i), beginning on the day on which the judge dies, if the judge dies after the end of the first year following the day on which the election takes effect, and

  • (iv) if the judge dies within the first year following the day on which the election takes effect, the monthly amounts corresponding to the reduction described in section 7, together with interest as set out in subsection 44.2(3.1) of the Act.

Demographic Assumptions

• 10 (1) Subject to subsection (2), for the purposes of section 9, the following are the demographic assumptions on which the actuarial present values are to be based:

  • (a) the rates of mortality for any judge are the averages of the rates of mortality for judges receiving benefits in relation to a disability and judges receiving benefits other than in relation to a disability of the same age group as the judge, as set out in the actuarial valuation report most recently laid before Parliament in accordance with section 9 of the Public Pensions Reporting Act, taking into account the mortality projection factors set out in that report, which averages are weighted in accordance with the benefits paid to judges in relation to a disability and to judges other than in relation to a disability;

  • (b) the rates of mortality for any survivor are those set out for spouses in the actuarial valuation report most recently laid before Parliament in accordance with section 9 of the Public Pensions Reporting Act, taking into account the mortality projection factors set out in that report; and

  • (c) the rates of divorce are those established by the Superintendent of Financial Institutions in accordance with the statistics on divorce published by Statistics Canada.

• (2) If a judge is less than 65 years of age, the demographic assumptions described in subsection (1) apply, except that the weights used for determining the average mortality rates of the judges shall be the same weights used for a judge aged 65.

11 For the purpose of section 9, except as provided under subparagraph 9(b)(iv), the rates of interest are,

• (a) for the first 15 years after the day on which the election takes effect, determined in accordance with the following formula, expressed as a percentage and rounded to the nearest one quarter per cent:

  {[1 + ((m + 0.25)/200)]² - 1} × 100

  where

  m

  represents the month-end value of the real rate of interest on long-term Government of Canada real return bonds (Series B114018), as published in the Bank of Canada’s Weekly Financial Statistics, in the second calendar month preceding the month in which the election takes effect; and

• (b) for subsequent years, 3.25%.

Revision or Revocation of an Election

• 12 (1) If the Annuity Administrator becomes aware that a judge who has made an election has been sent any erroneous or misleading information in respect of the amount of the monthly instalments of the annuity described in subparagraph 9(b)(i) or the amount of the monthly instalments of the optional survivor annuity, the Annuity Administrator shall notify the judge of the corrected information by registered mail.

• (2) The judge may accept the revised amount or revoke the election by advising the Annuity Administrator to that effect by registered mail sent within 90 days after the day on which the Annuity Administrator’s notice is sent. If the judge does not advise the Annuity Administrator, he or she is deemed to have accepted the revised amount on the day following the ninetieth day after the sending of the Annuity Administrator’s notice.

• (3) If a judge accepts or is deemed to have accepted the revised amount, the reduction takes effect beginning on the day on which the election takes effect.

• (4) If a judge revokes the election, the reduction is discontinued beginning on the day on which the revocation is sent to the Annuity Administrator.

• (5) If a judge revokes the election within 12 months of the day on which the election took effect, the monthly amounts corresponding to the reduction described in section 7, together with interest as set out in subsection 44.2(3.1) of the Act, shall be repaid to the judge.

Election Ceases to Have Effect

• 13 (1) An election ceases to have effect on the day on which the first of the following events occurs:

  • (a) in the case of an election in respect of a spouse

    • (i) the spouse dies,

    • (ii) the annulment of the marriage of the judge and the spouse takes effect, or

    • (iii) the divorce between the judge and the spouse takes effect; and

  • (b) in the case of an election in respect of a common-law partner

    • (i) the common-law partner dies,

    • (ii) a notice is sent by the judge to the Annuity Administrator indicating that the cohabitation in a conjugal relationship between the judge and common-law partner has ended, or

    • (iii) the judge marries or begins to cohabit in a conjugal relationship with a person other than the common-law partner.

• (2) The reduction is discontinued beginning on the day on which the election ceases to have effect.

Coming into Force

Footnote ^*14 These Regulations come into force on the day on which section 24 of An Act to amend the Judges Act and to amend another Act in consequence, being chapter 7 of the Statutes of Canada, 2001, comes into force.

• Return to footnote ^*[Note: Regulations in force August 1, 2001, see SI/2001-85 and 2006, c. 11, s. 36.]