Canada Pension Plan (R.S.C., 1985, c. C-8)

Marginal note:Attribution of amount for second additional contributory period — one child

• 53.4 (1) An amount, determined by the following formula, shall be attributed to a contributor for a year during which they were a family allowance recipient with respect to one child, if that amount is greater than their second additional unadjusted pensionable earnings for that year:

  [[(M1 × A) + (M2 × B) + (M3 × C) + (M4 × D) + (M5 × E) + (M6 × F)]/R] × T

  where

  A

  is the second additional unadjusted pensionable earnings of the contributor for the fifth year before the year in which the contributor became a family allowance recipient with respect to the child, divided by the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings, for that fifth year;

  B

  is the second additional unadjusted pensionable earnings of the contributor for the fourth year before the year in which the contributor became a family allowance recipient with respect to the child, divided by the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings for that fourth year;

  C

  is the second additional unadjusted pensionable earnings of the contributor for the third year before the year in which the contributor became a family allowance recipient with respect to the child, divided by the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings for that third year;

  D

  is the second additional unadjusted pensionable earnings of the contributor for the second year before the year in which the contributor became a family allowance recipient with respect to the child, divided by the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings for that second year;

  E

  is the second additional unadjusted pensionable earnings of the contributor for the year before the year in which the contributor became a family allowance recipient with respect to the child, divided by the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings for that prior year;

  F

  is,

  • (a) in the case where an amount has been previously attributed by this section for the year in which the contributor became a family allowance recipient with respect to the child, that amount, or

  • (b) in any other case

    • (i) if the contributor became a family allowance recipient with respect to the child in January, zero, or

    • (ii) in any other case, the lesser of 1 and the number determined by the formula

      G/[H × (M6/12)]

      where

      G

      is the second additional unadjusted pensionable earnings of the contributor for the year in which the contributor became a family allowance recipient with respect to the child, and

      H

      is the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings for the year in which the contributor became a family allowance recipient with respect to the child;

  M1

  is the lesser of

  • (a) the number of months in the contributor’s second additional contributory period in the fifth year before the year in which the contributor became a family allowance recipient with respect to the child, and

  • (b) the number determined by the formula

    12 − M6

  M2

  is the number of months in the contributor’s second additional contributory period in the fourth year before the year in which the contributor became a family allowance recipient with respect to the child;

  M3

  is the number of months in the contributor’s second additional contributory period in the third year before the year in which the contributor became a family allowance recipient with respect to the child;

  M4

  is the number of months in the contributor’s second additional contributory period in the second year before the year in which the contributor became a family allowance recipient with respect to the child;

  M5

  is the number of months in the contributor’s second additional contributory period in the year before the year in which the contributor became a family allowance recipient with respect to the child;

  M6

  is the number of months in the contributor’s second additional contributory period in the year in which the contributor became a family allowance recipient with respect to the child that are before the month in which they became a family allowance recipient with respect to that child;

  R

  is the greater of 36 and the sum of M1, M2, M3, M4, M5 and M6; and

  T

  is the difference between the Year’s Additional Maximum Pensionable Earnings and the Year’s Maximum Pensionable Earnings for the year for which the amount is to be attributed.

• Marginal note:Attribution of amount for second additional contributory period — more than one child

  (2) If the contributor is a family allowance recipient with respect to more than one child in a year, an amount shall be attributed to the contributor for that year that is the greater of each amount determined under subsection (1), calculated with respect to each child without regard to the other children.

• Marginal note:Year in which second additional contributory period begins or ends

  (3) For the purposes of subsection (1), for a year in which the contributor’s second additional contributory period begins or ends, the amount to be attributed to the contributor is equal to that proportion of the amount determined in accordance with subsection (1) that the number of months that are included in the contributor’s second additional contributory period in that year is of 12.

• Marginal note:Year in which second additional contributory period begins

  (4) For the purposes of the descriptions of A to E in subsection (1), if the contributor’s second additional contributory period begins in the five years before the year in which they became a family allowance recipient,

  • (a) the Year’s Maximum Pensionable Earnings for the year in which their second additional contributory period begins is replaced by the prorated portion determined by the formula

    A × (M ÷ 12)

    where

    A

    is the Year’s Maximum Pensionable Earnings for the year in which the contributor’s second additional contributory period begins, and

    M

    is the number of months in that year that are included in the contributor’s second additional contributory period; and

  • (b) the Year’s Additional Maximum Pensionable Earnings for the year in which their second additional contributory period begins is replaced by the prorated portion determined by the formula

    A × (M ÷ 12)

    where

    A

    is the Year’s Additional Maximum Pensionable Earnings for the year in which the contributor’s second additional contributory period begins, and

    M

    is the number of months in that year that are included in the contributor’s second additional contributory period.

Marginal note:First additional unadjusted pensionable earnings for years of attribution

53.5 For each year in which there is an attribution of an amount under section 53.3, the amount of the first additional unadjusted pensionable earnings of a contributor for the year determined under section 53.1 is to be replaced by that amount and that amount is considered to be the contributor’s first additional unadjusted pensionable earnings for that year.

Marginal note:Second additional unadjusted pensionable earnings for years of attribution

53.6 For each year in which there is an attribution of an amount under section 53.4, the amount of the second additional unadjusted pensionable earnings of a contributor for the year determined under section 53.2 is to be replaced by that amount and that amount is considered to be the contributor’s second additional unadjusted pensionable earnings for that year.

Marginal note:Base unadjusted pensionable earnings for years of division

54 The amount of the base unadjusted pensionable earnings of a contributor for a year determined under section 53 is to be adjusted for each year in which there is a division of base unadjusted pensionable earnings under section 55 or 55.1 and under a provincial pension plan.

Marginal note:First additional unadjusted pensionable earnings for years of division

54.1 The amount of the first additional unadjusted pensionable earnings of a contributor for a year determined under section 53.1 is to be adjusted for each year in which there is a division of those earnings under section 55.1 and under a provincial pension plan.

Marginal note:Second additional unadjusted pensionable earnings for years of division

54.2 The amount of the second additional unadjusted pensionable earnings of a contributor for a year determined under section 53.2 is to be adjusted for each year in which there is a division of those earnings under section 55.1 and under a provincial pension plan.

Division of Unadjusted Pensionable Earnings for Divorces and Annulments before the Coming into Force of section 55.1

Marginal note:Application for division

• 55 (1) Subject to this section, subsections 55.2(2), (3) and (4) and section 55.3, an application for a division of the unadjusted pensionable earnings of former spouses may be made in writing to the Minister by or on behalf of either former spouse, by the estate or succession of either former spouse or by any person that may be prescribed, within 36 months or, if both former spouses agree in writing, at any time after the date of a judgment granting a divorce or of a judgment of nullity of the marriage, rendered on or after January 1, 1978 and before January 1, 1987.

• Marginal note:Idem

  (2) For the purposes of this section,

  • (a) notwithstanding paragraphs (b) and (c), the former spouses must have cohabited for at least thirty-six consecutive months during the marriage before an application made under subsection (1) may be approved by the Minister;

  • (b) the marriage is deemed to have been solemnized or nullified or a divorce is deemed to have been made final on the last day of the year preceding the registered date of the marriage or the judgment of nullity or the effective date of the judgment granting a divorce; and

  • (c) the former spouses shall be deemed to have cohabited throughout the year in which the marriage was solemnized, and shall be deemed not to have cohabited at any time during the year of divorce or of annulment of the marriage.

• Marginal note:Period of cohabitation

  (3) In determining the period for which the unadjusted pensionable earnings of the former spouses shall be divided, only those months during which the former spouses cohabited during the marriage shall be considered and, for the purposes of this section, months during which former spouses cohabited shall be determined in the prescribed manner.

• Marginal note:Division of unadjusted pensionable earnings

  (4) On approval by the Minister of an application referred to in subsection (1), the unadjusted pensionable earnings for each former spouse for the period of cohabitation attributable to contributions made under this Act, determined in the same manner as the total pensionable earnings attributable to contributions made under this Act are determined in section 78, shall be added and then divided equally and the unadjusted pensionable earnings so divided shall be attributed to each former spouse.

• Marginal note:On division unadjusted pensionable earnings under this Act

  (5) Where there is a division under subsection (4) and under a provincial pension plan, for the purposes of benefit calculation and payment under this Act, the total unadjusted pensionable earnings of a contributor for a year of division shall be the aggregate of his unadjusted pensionable earnings attributed under subsection (4) and his unadjusted pensionable earnings attributed under a provincial pension plan.

• Marginal note:No division

  (6) No division of unadjusted pensionable earnings for a period of cohabitation shall be made

  • (a) where the total unadjusted pensionable earnings of the former spouses in a year does not exceed twice the Year’s Basic Exemption;

  • (b) for the period before which one of the former spouses reached eighteen years of age or after which a former spouse reached seventy years of age;

  • (c) for the period in which one of the former spouses was a beneficiary of a retirement pension under this Act or under a provincial pension plan; and

  • (d) for any month that is excluded from the contributory period of one of the former spouses under this Act or a provincial pension plan by reason of disability.

• Marginal note:Benefits in pay

  (7) Where an application referred to in subsection (1) has been approved and a benefit is payable under this Act to or in respect of either of the former spouses for any month commencing on or before the day of receipt of an application under subsection (1), the basic amount of the benefit shall be calculated and adjusted in accordance with section 45 but subject to the division of unadjusted pensionable earnings made under this section and the adjusted benefit shall be paid effective the month following the month the application referred to in subsection (1) is received.

• Marginal note:Notification of division

  (8) On approval by the Minister of an application for division of unadjusted pensionable earnings, an applicant and the former spouse or the former spouse’s estate shall be notified in a manner prescribed by regulation and, where the applicant or the former spouse or the former spouse’s estate is dissatisfied with the division or the result thereof, the right of appeal as set out in this Part applies.

• Marginal note:Regulations

  (9) The Governor in Council may make regulations prescribing the time, manner and form of making applications for division of unadjusted pensionable earnings or withdrawal of applications for that division, the procedures to be followed in dealing with and approving those applications and the information and evidence to be furnished in connection therewith.

Division of Unadjusted Pensionable Earnings

Marginal note:When mandatory division to take place

• 55.1 (1) Subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances:

  • (a) in the case of spouses, following a judgment granting a divorce or a judgment of nullity of the marriage, on the Minister’s being informed of the judgment and receiving the prescribed information;

  • (b) in the case of spouses, following the approval by the Minister of an application made by or on behalf of either spouse, by the estate or succession of either spouse or by any person that may be prescribed, if

    • (i) the spouses have been living separate and apart for a period of one year or more, and

    • (ii) in the event of the death of one of the spouses after they have been living separate and apart for a period of one year or more, the application is made within three years after the death; and

  • (c) in the case of common-law partners, following the approval by the Minister of an application made by or on behalf of either former common-law partner, by the estate or succession of one of those former common-law partners or by any person that may be prescribed, if

    • (i) the former common-law partners have been living separate and apart for a period of one year or more, or one of the former common-law partners has died during that period, and

    • (ii) the application is made within four years after the day on which the former common-law partners commenced to live separate and apart or, if both former common-law partners agree in writing, at any time after the end of that four-year period.

• Marginal note:Calculation of period of separation

  (2) For the purposes of this section,

  • (a) persons subject to a division of unadjusted pensionable earnings shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

  • (b) a period during which persons subject to such a division have lived separate and apart shall not be considered to have been interrupted or terminated

    • (i) by reason only that either person has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the person’s own volition, if it appears to the Minister that the separation would probably have continued if the person had not become so incapable, or

    • (ii) by reason only that the two persons have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

• Marginal note:Period of cohabitation

  (3) For the purposes of this section, persons subject to a division of unadjusted pensionable earnings must have cohabited for a continuous period of at least one year in order for the division to take place, and, for the purposes of this subsection, a continuous period of at least one year shall be determined in a manner prescribed by regulation.

• Marginal note:Period for purposes of division

  (4) In determining the period for which the unadjusted pensionable earnings of the persons subject to a division shall be divided, only those months during which the two persons cohabited shall be considered, and, for the purposes of this subsection, months during which the two persons cohabited shall be determined in the prescribed manner.

• Marginal note:Minister’s discretion

  (5) Before a division of unadjusted pensionable earnings is made under this section, or within the prescribed period after such a division is made, the Minister may refuse to make the division or may cancel the division, as the case may be, if the Minister is satisfied that

  • (a) benefits are payable to or in respect of both persons subject to the division; and

  • (b) the amount of both benefits decreased at the time the division was made or would decrease at the time the division was proposed to be made.