Short Title

Marginal note:Short title

1 This Act may be cited as the Garnishment, Attachment and Pension Diversion Act.

PART IGarnishment and Attachment Proceedings

Interpretation

Marginal note:Definitions

2 In this Part,

debtor

debtor, in respect of a garnishee summons, means the person whose salary or remuneration is sought to be garnisheed; (débiteur)

garnishment

garnishment includes attachment; (Version anglaise seulement)

Her Majesty

Her Majesty means Her Majesty in right of Canada; (Sa Majesté)

Minister

Minister, in relation to any provision of this Part, means the member or members of the Queen’s Privy Council for Canada designated by the Governor in Council as the Minister or Ministers for the purposes of that provision; (ministre)

provincial garnishment law

provincial garnishment law means the law of general application of a province relating to garnishment that is in force at the time in question. (droit provincial en matière de saisie-arrêt)

Garnishment of Her Majesty

Marginal note:Her Majesty in right of Canada may be garnisheed

3 Notwithstanding any provision of any other Act of Parliament preventing the garnishment of Her Majesty, Her Majesty may be garnisheed, subject to and in accordance with this Part and any regulation made thereunder.

DIVISION IDepartments and Certain Crown Corporations

Marginal note:Definitions

4 In this Division,

department

ministère

department has the meaning assigned by paragraphs (a), (a.1), (b) and (d) of the definition department in section 2 of the Financial Administration Act; (ministère)

garnishee summons

bref de saisie-arrêt

garnishee summons includes any document or court order of like import; (bref de saisie-arrêt)

pay period

période de paye

pay period means, in respect of any particular person, the period commencing on the day following the day that that person’s salary cheque is normally dated and ending on the day that his next salary cheque is normally dated; (période de paye)

prescribed

prescrit ou réglementaire

prescribed means prescribed by regulations made under this Division; (prescrit ou réglementaire)

salary

traitement

salary means

• (a) in the case of a judge to whom the Judges Act applies, the salary payable under that Act, or

• (b) in the case of any other person,

  • (i) the basic pay payable to that person for the performance of the regular duties of a position or office, and

  • (ii) any amount payable as allowances, special remuneration, payment for overtime or other compensation or as a gratuity,

excluding any amount deemed to be or to have been excluded from that person’s salary pursuant to regulations made under paragraph 12(b). (traitement)

Marginal note:Garnishment of salaries, remuneration

5 Her Majesty is, subject to this Division and any regulation made thereunder, bound by provincial garnishment law in respect of

• (a) salaries, and

• (b) remuneration as fees, honoraria or other payments of like import, in respect of any office or position or in respect of the performance of any services

payable to judges to whom the Judges Act applies, or payable to any other person, excluding corporations, on behalf of a department or by a Crown corporation prescribed under paragraph 12(c) for the purposes of this Division.

Marginal note:Service binds Her Majesty

• 6 (1) Subject to this Division, service on Her Majesty of a garnishee summons, together with a copy of the judgment or order against the debtor and an application in the prescribed form, binds Her Majesty fifteen days after the day on which those documents are served.

• Marginal note:When service is effective

  (2) A garnishee summons served on Her Majesty is of no effect unless it is served on Her Majesty in the first thirty days following the first day on which it could have been validly served on Her Majesty.

Marginal note:Where documents must be served on Her Majesty

• 7 (1) Service of documents on Her Majesty in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.

• Marginal note:Method of service on Her Majesty

  (2) In addition to any method of service permitted by the law of a province, service of documents on Her Majesty under subsection (1) may be effected by registered mail, whether within or outside the province, or by any other method prescribed.

• Marginal note:Where service by registered mail

  (3) Where service of a document on Her Majesty is effected by registered mail, the document shall be deemed to be served on the day of its receipt by Her Majesty.

Marginal note:Moneys bound by service of garnishee summons

8 For the purposes of garnishment proceedings permitted by this Division, service of a garnishee summons binds Her Majesty in respect of the following money to be paid by Her Majesty to the debtor named in the garnishee summons:

• (a) in the case of a salary,

  • (i) the salary to be paid on the last day of the second pay period next following the pay period in which Her Majesty is bound by the garnishee summons, and

  • (ii) where the garnishee summons has continuing effect under the law of the province, the salary to be paid on the last day of each subsequent pay period; or

• (b) in the case of remuneration described in paragraph 5(b),

  • (i) the remuneration payable, in respect of the department or Crown corporation named in the application referred to in section 6, on the fifteenth day following the day on which Her Majesty is bound by the garnishee summons, and

  • (ii) either

    • (A) any remuneration becoming payable in respect of that department or Crown corporation in the thirty days following the fifteenth day after the day on which Her Majesty is bound by the garnishee summons that is owing on that fifteenth day or that becomes owing in the fourteen days following that fifteenth day, or

    • (B) where the garnishee summons has continuing effect under the law of the province, any remuneration becoming payable in respect of that department or Crown corporation subsequent to the fifteenth day after the day on which Her Majesty is bound by the garnishee summons.

9 [Repealed, 1997, c. 1, s. 26]

Marginal note:Time period for Her Majesty’s response to a garnishee summons

10 Her Majesty has the following time period within which to respond to a garnishee summons:

• (a) in the case of a salary, fifteen days, or such lesser number of days as is prescribed, after the last day of the second pay period next following the pay period in which Her Majesty is bound by the garnishee summons; or

• (b) in the case of remuneration described in paragraph 5(b), fifteen days, or such lesser number of days as is prescribed, after the day on which the remuneration is garnisheed.

Marginal note:Method of response to garnishee summons

• 11 (1) In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, Her Majesty may respond to a garnishee summons by registered mail or by any other method prescribed.

• Marginal note:Where response is by registered mail

  (2) Where Her Majesty responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that Her Majesty has responded to the garnishee summons.

• Marginal note:Effect of payment into court

  (3) A payment into court by Her Majesty under this section is a good and sufficient discharge of liability, to the extent of the payment.

• Marginal note:Recovery of overpayment to debtor

  (4) Where, in honouring a garnishee summons, Her Majesty, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that Her Majesty should have paid to that debtor, the excess becomes a debt due to Her Majesty by that debtor and may be recovered from the debtor at any time by set-off against future moneys payable to the debtor as salary or remuneration.

Marginal note:Regulations

12 The Governor in Council may, on the recommendation of the Minister, make regulations

• (a) specifying the place where service of documents on Her Majesty must be effected in connection with garnishment proceedings permitted by this Division;

• (b) deeming, for the purposes of the definition salary in section 4, any amount to be or to have been excluded from a person’s salary;

• (c) prescribing Crown corporations for the purposes of this Division; and

• (d) prescribing any other matters that are by this Division to be prescribed.

Marginal note:Information to be made available to public

13 The Minister shall cause information on the manner of commencing garnishment proceedings permitted by this Division to be made available throughout Canada in such a manner that the public will have reasonable access thereto.

DIVISION IICrown Corporations not Covered by Division I

Marginal note:Crown corporations

• 14 (1) Subject to subsection (2), in respect of moneys payable by Crown corporations not prescribed under paragraph 12(c) for the purposes of Division I, Her Majesty is bound by provincial garnishment law.

• Marginal note:Idem

  (2) In respect of Crown corporations to which subsection (1) applies that are prescribed under subsection (3) for the purposes of this subsection, Her Majesty is not bound by provincial garnishment law in relation to a “pension benefit” as defined in Part II.

• Marginal note:Regulations

  (3) The Governor in Council may, on the recommendation of the Minister, make regulations prescribing Crown corporations for the purposes of subsection (2).

DIVISION IIICanadian Forces

Marginal note:Canadian Forces

15 In respect of pay and allowances payable to members of the Canadian Forces, Her Majesty is bound by provincial garnishment law to the extent, in the manner, and subject to the terms and conditions that may be provided by or under regulations made by the Governor in Council pursuant to the National Defence Act.

DIVISION IVSenate, House of Commons, Library of Parliament, Office of the Senate Ethics Officer and Office of the Conflict of Interest and Ethics Commissioner

Marginal note:Definitions

16 In this Division,

garnishee summons

bref de saisie-arrêt

garnishee summons includes any document or court order of like import; (bref de saisie-arrêt)

pay period

période de paye

pay period means, in respect of any particular person, the period commencing on the day following the day that that person’s salary cheque is normally dated and ending on the day that his next salary cheque is normally dated; (période de paye)

prescribed

prescrit ou réglementaire

prescribed means prescribed by regulations made under this Division; (prescrit ou réglementaire)

salary

traitement

salary means

• (a) in the case of a member of the Senate or House of Commons, all moneys payable under the Parliament of Canada Act, the Salaries Act and any appropriation Act, other than moneys not included in computing the member’s income for the purposes of Part I of the Income Tax Act, or

• (b) in the case of the staff of the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner or the staff of members of the Senate or House of Commons, or in the case of any other person paid out of moneys appropriated by Parliament for use by the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner,

  • (i) the basic pay payable to a person for the performance of the regular duties of a position or office, and

  • (ii) any amount payable as allowances, special remuneration, payment for overtime or other compensation or as a gratuity,

excluding any amount deemed to be or to have been excluded from that person’s salary pursuant to regulations made under paragraph 24(b). (traitement)

Marginal note:Garnishment of salaries, remuneration

17 The Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer and office of the Conflict of Interest and Ethics Commissioner are, subject to this Division and any regulation made under it, bound by provincial garnishment law in respect of

• (a) salaries; and

• (b) remuneration to persons, excluding corporations, as fees, honoraria or other payments of like import, in respect of any office or position or in respect of the performance of any services.

Marginal note:Service binding

• 18 (1) Subject to this Division, service on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner of a garnishee summons, together with a copy of the judgment or order against the debtor and an application in the prescribed form, binds the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, 15 days after the day on which those documents are served.

• Marginal note:When service is effective

  (2) A garnishee summons served on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner is of no effect unless it is served on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, in the first 30 days following the first day on which it could have been validly served on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be.

Marginal note:Place of service

• 19 (1) Service of documents on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.

• Marginal note:Method of service

  (2) In addition to any method of service permitted by the law of a province, service of documents on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner under subsection (1) may be effected by registered mail, whether within or outside the province, or by any other method prescribed.

• Marginal note:If service by registered mail

  (3) If service of a document on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner is effected by registered mail, the document shall be deemed to be served on the day of its receipt by the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be.

20 [Repealed, 1997, c. 1, s. 30]

Marginal note:Moneys bound by service of garnishee summons

21 For the purposes of garnishment proceedings permitted by this Division, service of a garnishee summons is binding in respect of the following money to be paid to the debtor named in the garnishee summons:

• (a) in the case of a salary,

  • (i) the salary to be paid on the last day of the second pay period next following the pay period in which the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, is bound by the garnishee summons, and

  • (ii) where the garnishee summons has continuing effect under the law of the province, the salary to be paid on the last day of each subsequent pay period; or

• (b) in the case of remuneration described in paragraph 17(b),

  • (i) the remuneration payable on the fifteenth day following the day on which the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, is bound by the garnishee summons, and

  • (ii) either

    • (A) any remuneration becoming payable in the thirty days following the fifteenth day after the day on which the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, is bound by the garnishee summons that is owing on that fifteenth day or that becomes owing in the fourteen days following that fifteenth day, or

    • (B) if the garnishee summons has continuing effect under the law of the province, any remuneration becoming payable subsequent to the fifteenth day after the day on which the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, is bound by the garnishee summons.

Marginal note:Time period to respond to a garnishee summons

22 The Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner has the following time period within which to respond to a garnishee summons:

• (a) in the case of a salary, fifteen days, or such lesser number of days as is prescribed, after the last day of the second pay period next following the pay period in which the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner is bound by the garnishee summons; or

• (b) in the case of remuneration described in paragraph 17(b), fifteen days, or such lesser number of days as is prescribed, after the day on which the remuneration is garnisheed.

Marginal note:Method of response

• 23 (1) In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner may respond to a garnishee summons by registered mail or by any other method prescribed.

• Marginal note:Response by registered mail

  (2) If the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, has responded to the garnishee summons.

• Marginal note:Effect of payment into court

  (3) A payment into court by the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner under this section is a good and sufficient discharge of liability, to the extent of the payment.

• Marginal note:Recovery of overpayment to debtor

  (4) If, in honouring a garnishee summons, the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that it should have paid to that debtor, the excess becomes a debt due to the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, as the case may be, by that debtor and may be recovered from the debtor at any time by set-off against future moneys payable to the debtor as salary or remuneration.

Marginal note:Regulations

24 The Governor in Council may, on the recommendation of the Minister, made after consultation between the Minister and the Speaker of the Senate and the Speaker of the House of Commons, make regulations

• (a) specifying the place where service of documents on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner must be effected in connection with garnishment proceedings permitted by this Division;

• (b) deeming, for the purposes of the definition salary in section 16, any amount to be or to have been excluded from a person’s salary; and

• (c) prescribing any other matters that are by this Division to be prescribed.

Marginal note:Information to be made available to public

25 The Speaker of the Senate and the Speaker of the House of Commons shall cause information on the manner of commencing garnishment proceedings permitted by this Division to be made available throughout Canada in such a manner that the public will have reasonable access thereto.

Marginal note:No execution

26 No execution shall issue on a judgment given against the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner in garnishment proceedings permitted by this Part.

DIVISION VGeneral

Marginal note:Inconsistency between federal and provincial law

27 In the event of any inconsistency between this Part, any other Act of Parliament or a regulation made under this Part or under any other Act of Parliament, and the provincial garnishment law, the provincial garnishment law is overridden to the extent of the inconsistency.

Marginal note:No execution against Her Majesty

28 No execution shall issue on a judgment given against Her Majesty in garnishment proceedings permitted by this Part.

Marginal note:Regulations

29 The Governor in Council may,

• (a) on the recommendation of the Minister, make regulations generally for carrying out the purposes and provisions of Divisions I, II and III; and

• (b) on the recommendation of the Minister, made after consultation between the Minister and the Speaker of the Senate and the Speaker of the House of Commons, make regulations generally for carrying out the purposes and provisions of Division IV.

Marginal note:Prohibition

30 No employee may be dismissed, suspended or laid off solely on the ground that garnishment proceedings permitted by this Part may be or have been taken with respect to him.

PART IIDiversion of Pension Benefits to Satisfy Financial Support Orders

Application of Part

Marginal note:Application of Part

31 This Part applies only in respect of the enforcement of financial support orders against pension benefits payable pursuant to the superannuation Acts and like enactments referred to in the schedule.

Interpretation

Marginal note:Definitions

• 32 (1) In this Part,

  applicant

  applicant means a person by or on behalf of whom an application is made to the Minister for a diversion of a pension benefit under this Part; (requérant)

  application

  application means, except in subsection 35.1(2), sections 35.3 and 35.4, subsection 41(2) and paragraph 46(c), a request in writing to the Minister for a diversion of a pension benefit under this Part, containing the prescribed information, accompanied by a certified copy of the financial support order on which the application is based and any prescribed additional documentation; (requête)

  financial support order

  financial support order means, subject to subsection (2), an order or judgment for maintenance, alimony or support, including an order or judgment for arrears of payments, made pursuant to the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act or pursuant to the laws of a province relating to family financial support or the enforcement of family financial support; (ordonnance de soutien financier)

  Minister

  Minister, in relation to any provision of this Part and items 12 and 16 of the schedule, means the member or members of the Queen’s Privy Council for Canada designated by the Governor in Council as the Minister or Ministers for the purposes of that provision or those items; (ministre)

  net pension benefit

  net pension benefit means a pension benefit minus the prescribed deductions; (prestation nette de pension)

  pension benefit

  pension benefit means any

  • (a) pension,

  • (b) annual allowance,

  • (c) annuity,

  • (d) lump sum return of pension contributions, including interest, if any,

  • (e) gratuity,

  • (f) cash termination allowance,

  • (g) withdrawal allowance, including interest, if any, or

  • (h) transfer value

  payable pursuant to an enactment referred to in the schedule, and includes any benefit payable under the Supplementary Retirement Benefits Act or the Public Service Pension Adjustment Act, chapter P-33 of the Revised Statutes of Canada, 1970, in respect of that pension, annual allowance or annuity; (prestation de pension)

  prescribed

  prescribed means prescribed by regulation made under this Part; (prescrit ou réglementaire)

  recipient

  recipient means

  • (a) in respect of a pension benefit referred to in any of paragraphs (a) to (g) of the definition pension benefit, a child or other person to whom the pension benefit is immediately payable, but does not include a child or other person whose entitlement to the pension benefit is based on his or her status as a survivor of the person who was originally entitled to the pension benefit or would have been entitled to it had death not intervened, or

  • (b) in respect of a pension benefit referred to in paragraph (h) of the definition pension benefit, a person who is entitled to the pension benefit. (prestataire)

• Marginal note:Financial support order

  (2) For the purposes of this Part, the Minister shall disregard a component of a financial support order the dollar value of which cannot be readily ascertained from the financial support order itself or from the Minister’s records relating to the recipient’s pension benefit.

• Marginal note:Interpretation of the provincial law

  (3) With respect to the expression “the law of that province” in paragraphs 36(c) and (e), where the law of the province refers to the percentage or the maximum percentage of a pension that is to be or may be garnisheed, attached or diverted, the reference to “pension”, or equivalent expression, in the law of the province shall be construed, for the purpose of this Part, to mean “net pension benefit” as defined in this section.

• Marginal note:Interpretation of financial support orders

  (4) Where a financial support order is expressed in terms of a percentage of a recipient’s pension, the reference to “pension”, or equivalent expression, in the financial support order shall be construed, for the purpose of this Part, to mean “net pension benefit” as defined in this section.

Conditions for Diversion of Pension Benefits

Marginal note:Application for diversion

• 33 (1) Subject to this Part and the regulations, where

  • (a) any court in Canada of competent jurisdiction has, either before or after January 1, 1984,

    • (i) made a financial support order requiring a person to pay an amount to a child or other person, or

    • (ii) made an order permitting the enforcement of a financial support order described in subparagraph (i),

    and the order referred to in subparagraph (i) or (ii) is valid and subsisting, and

  • (b) the person against whom the financial support order has been made is a recipient,

  a person named in the financial support order may make an application to the Minister for diversion of a pension benefit payable to the recipient.

• Marginal note:Idem

  (2) An application may be made by a person on behalf of another person in accordance with regulations made under paragraph 46(a).

• Marginal note:Diversion of pension benefits

  (3) When an application made under this section has been duly completed, the Minister shall, not later than the first day of the fourth month following the month in which the application was duly completed, divert an amount or amounts computed in accordance with sections 36 to 40 and the regulations from any net pension benefit that is payable to the recipient named in the application, and any amount so diverted shall be paid, subject to subsection (4), to the applicant or to such other person as is designated in the financial support order.

• Marginal note:Where applicant under 18 years of age

  (4) Where, pursuant to this section, a diverted amount is to be paid to an applicant who is under eighteen years of age, payment thereof shall instead be made to the person having the custody and control of that applicant or, where there is no person having custody and control of that applicant, to such person as the Minister may direct.

Marginal note:Minister to notify recipient where a diversion is to be made

• 34 (1) Forthwith after receiving a duly completed application, the Minister shall cause a written notification, containing the prescribed information, to be sent in prescribed manner to the recipient named in the application, at the recipient’s latest known address, advising that an application for diversion of the recipient’s pension benefit has been received and that a diversion will be made in accordance with this Part.

• Marginal note:Recipient deemed to have received notification

  (2) The notification required under subsection (1) shall be deemed to have been received by the recipient one month after it has been sent to the recipient.

Marginal note:Conditions for diversion of pension benefits

35 No diversion of pension benefits under this Part shall be made unless the amount to be diverted is at least

• (a) twenty-five dollars per annum, in the case of periodic diversion payments; or

• (b) twenty-five dollars, in the case of a lump sum diversion payment.

Marginal note:Where pension benefit not immediately payable — Public Service Superannuation Act

• 35.1 (1) Where a person against whom there is a valid and subsisting financial support order

  • (a) has ceased to be employed in the public service,

  • (b) is not a recipient but has exercised an option for a deferred annuity under section 12 or 13 of the Public Service Superannuation Act or is entitled to exercise an option for a deferred annuity under either of those sections, and

  • (c) has reached 50 years of age but has not yet reached 60 years of age,

  a person entitled to support under the financial support order may apply for an order under subsection (2) to any court in Canada that has jurisdiction to make a financial support order.

• Marginal note:Order

  (2) A court to whom an application is made under subsection (1) may make an order deeming the person against whom there is a valid and subsisting financial support order to have exercised an option under section 12 or 13 of the Public Service Superannuation Act in favour of an annual allowance payable as of the date of the making of the order under this subsection if the court is satisfied that

  • (a) there is an extended pattern of non-payment of the financial support order; and

  • (b) the person making the application has taken reasonable steps to enforce the financial support order through other means.

Marginal note:Effect of order

35.2 An order made under subsection 35.1(2) shall be deemed for all purposes to have the same effect as if the person to whom the order relates had exercised the option referred to in the order.

Marginal note:Provision of information

35.3 On application by a person entitled to support under a valid and subsisting financial support order, the Minister shall, in accordance with the regulations, provide the person with the prescribed information concerning any matter related to the making of an application under subsection 35.1(1).

Marginal note:Application may be made by provincial enforcement service

35.4 An application under subsection 35.1(1) or section 35.3 may be made on behalf of a person by any other person or by a provincial enforcement service, within the meaning of section 2 of the Family Orders and Agreements Enforcement Assistance Act.

Amount of Diversion

Marginal note:Rules governing amount of diversion

36 Where

• (a) a financial support order provides only for periodic payments and the recipient’s pension benefit consists only of periodic payments, or

• (b) a financial support order provides only for a lump sum payment and the recipient’s pension benefit consists only of a lump sum payment,

the amount to be diverted from the recipient’s net pension benefit shall be governed by the following rules:

• (c) where the recipient is domiciled in Canada and ordinarily resident in a province in which there is in force a law of general application permitting garnishment, attachment or diversion of pensions for the enforcement of financial support orders, the amount to be diverted shall be determined in accordance with the law of that province in force at the time of the diversion payment,

• (d) where the recipient is domiciled in Canada and ordinarily resident elsewhere than in a province described in paragraph (c), the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of fifty per cent of the recipient’s net pension benefit,

• (e) where the recipient is domiciled outside Canada and the applicant is ordinarily resident in a province described in paragraph (c), the amount to be diverted shall be determined in accordance with the law of that province in force at the time of the diversion payment,

• (f) where the recipient is domiciled outside Canada and the applicant is ordinarily resident in a province other than one described in paragraph (c), the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of fifty per cent of the recipient’s net pension benefit, or

• (g) where the recipient and the applicant are domiciled outside Canada and are ordinarily resident outside Canada, the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of fifty per cent of the recipient’s net pension benefit.

Marginal note:Lump sum financial support order vs. periodic pension benefit

• 37 (1) Where a financial support order provides only for a lump sum payment and the recipient’s pension benefit consists only of periodic payments, no diversion shall be made, except as provided in subsection (2).

• Marginal note:Circumstances in which diversion shall be made

  (2) Where the Minister is of the opinion that it is impossible or impracticable for a financial support order described in subsection (1) to be varied to stipulate periodic payments and the Minister has so notified the applicant and the recipient, a diversion shall be made in the amount of fifty per cent of the recipient’s monthly net pension benefit, subject to subsection (3), until

  • (a) the financial support order has been satisfied in full by the diversion; or

  • (b) the Minister is satisfied, on receipt of evidence submitted by the applicant or recipient, that the financial support order has been satisfied in full by other means or is no longer valid and subsisting.

• Marginal note:Filing of annual statement

  (3) Where a diversion described in subsection (2) is made, the applicant must file annually with the Minister, within the prescribed time, a written statement respecting the applicant’s continued entitlement to the diversion, containing the prescribed information, signed by the applicant and witnessed by a person of a prescribed category.

• Marginal note:Where subsection (3) not complied with

  (4) Where subsection (3) is not complied with, the diversion shall be terminated as of the first day of the month following the expiration of the time prescribed under subsection (3), without prejudice to the applicant’s right to re-apply under this Part.

Marginal note:Financial support order providing for lump sum and periodic payments vs. periodic pension benefit

38 Where a financial support order provides for a lump sum payment and for periodic payments and the recipient’s pension benefit consists only of periodic payments, the two components of the financial support order shall be treated as follows:

• (a) the periodic component of the financial support order shall be dealt with in accordance with the rules in paragraphs 36(c) to (g); and

• (b) where

  • (i) the amount diverted pursuant to paragraph (a) is less than fifty per cent of the recipient’s net pension benefit, and

  • (ii) the maximum that could be diverted pursuant to paragraph (a) as a result of the application of the rules in paragraphs 36(c) to (g) exceeds the amount actually diverted pursuant to paragraph (a),

  then, in respect of the excess referred to in subparagraph (ii), section 37 applies, with such modifications as the circumstances require, to the lump sum component of the financial support order, but the application of that section may not raise the total diversion under this Part to more than fifty per cent of the recipient’s net pension benefit.

Marginal note:Periodic financial support order vs. lump sum pension benefit

• 39 (1) Where a financial support order provides only for periodic payments and the recipient’s pension benefit consists only of a lump sum, the Minister shall, forthwith after receiving a duly completed application,

  • (a) take all reasonable steps to cause payment to the recipient of any portion of the recipient’s pension benefit that could be subject to diversion as a result of the application of the rules in paragraphs 36(c) to (g) to be delayed, in accordance with this section; and

  • (b) cause the applicant to be notified by registered mail that, unless the financial support order is varied in accordance with this section, it will be treated as a financial support order for a lump sum payment of an amount equal to one periodic payment under the original financial support order.

• Marginal note:Applicant must seek variation of financial support order

  (2) Where, within thirty days of receipt by the applicant of the notification referred to in paragraph (1)(b), the Minister is satisfied, on receipt of evidence submitted by the applicant, that the applicant has applied to court for variation of the financial support order to one providing in whole or in part for a lump sum payment, the Minister shall cause payment of the pension benefit to the recipient to be further delayed for a further period not exceeding ninety days.

• Marginal note:When notification deemed to be received by applicant

  (3) For purposes of subsection (2), the date set out in an acknowledgment of receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be deemed to be the date of receipt by the applicant of the notification to which that acknowledgment of receipt relates.

• Marginal note:Where condition not satisfied

  (4) Where the evidence referred to in subsection (2) is not received by the Minister within the period mentioned in that subsection, the Minister shall forthwith treat the application for diversion as an application based on a financial support order for the payment of a lump sum equal to the amount of one periodic payment under the original financial support order.

• Marginal note:Applicant must submit varied financial support order to Minister

  (5) Where, within ninety days after receiving the evidence referred to in subsection (2), the Minister receives a certified copy of a varied financial support order providing in whole or in part for a lump sum payment, the Minister shall proceed with the application for diversion in accordance with this Part.

• Marginal note:Where condition not satisfied

  (6) Where a certified copy of the varied financial support order referred to in subsection (5) is not received by the Minister within the period mentioned in that subsection, the Minister shall forthwith treat the application for diversion as an application based on a financial support order for the payment of a lump sum equal to the amount of one periodic payment under the original financial support order.

Marginal note:Financial support order for lump sum and periodic payments vs. lump sum pension benefit

40 Where a financial support order provides for a lump sum payment and periodic payments and the recipient’s pension benefit consists only of a lump sum, the two components of the financial support order shall be treated as follows:

• (a) the lump sum component of the financial support order shall be dealt with in accordance with the rules in paragraphs 36(c) to (g); and

• (b) where the maximum that could be diverted pursuant to paragraph (a) as a result of the application of the rules in paragraphs 36(c) to (g) exceeds the amount actually diverted pursuant to paragraph (a), then, in respect of that excess, section 39 applies, with such modifications as the circumstances require, to the periodic component of the financial support order.

Marginal note:Arrears of payment of support

40.1 Notwithstanding paragraph 36(d), (f) or (g), subsection 37(2) or section 38, 39 or 40, where the financial support order is an order or judgment for arrears of payments, the amount to be diverted may exceed fifty per cent of the recipient’s net pension benefit.

General

Marginal note:Application for change in amount being diverted or for termination of diversion

• 41 (1) Where a diversion is being carried out, either the applicant or the recipient may at any time apply to the Minister, in accordance with the regulations made under paragraph 46(c), for a variation in the amount being diverted or for termination of the diversion.

• Marginal note:When variation or termination effective

  (2) Notwithstanding a recipient’s entitlement under an enactment referred to in the schedule, a variation or termination of a diversion pursuant to an application under subsection (1) is effective only as of the first day of the month following the month in which the Minister receives the duly completed application for variation or termination, as the case may be.

Marginal note:Errors in amounts paid

• 42 (1) Where a diversion payment made to an applicant is less than the amount that should have been paid to the applicant pursuant to this Part, the amount of the deficiency

  • (a) to the extent that it was in error paid to the recipient, becomes a debt due to Her Majesty by the recipient, and may be recovered from the recipient at any time by set-off against future pension benefits to be paid to the recipient; and

  • (b) to the extent that it was in error retained by Her Majesty, becomes a debt due to the applicant by Her Majesty.

• Marginal note:Idem

  (2) Where a diversion payment made to an applicant is greater than the amount that should have been paid to the applicant pursuant to this Part, the amount of the excess becomes a debt due to Her Majesty by the applicant, and may be recovered from the applicant at any time by set-off against future diversion payments to be paid to the applicant under this Part.

Marginal note:Where diversion is less than $10 per month

43 Where periodic diversion payments under this Part are less than ten dollars per month, the Minister may direct that they be paid in arrears, in equal instalments, either quarterly, semi-annually or annually.

Marginal note:Death of recipient

44 Periodic diversion payments shall terminate at the end of the month in which the recipient dies.

Marginal note:Offence

45 Every person who makes a false or misleading representation to the Minister in any application or other proceeding under this Part is guilty of an offence punishable on summary conviction.

Marginal note:Regulations

46 The Governor in Council may, on the recommendation of the Minister, make regulations

• (a) respecting the making of applications by one person on behalf of another, and respecting the payment of diverted amounts to one person for the benefit of another;

• (b) respecting the amount or amounts to be diverted from a recipient’s net pension benefit and the procedure to be followed in any situation not dealt with in sections 36 to 40;

• (b.1) respecting the provision of information for the purposes of section 35.3;

• (c) respecting the grounds for, and the procedure relating to applications for, variations in the amount being diverted or for termination of a diversion;

• (d) prescribing anything that by this Part is to be prescribed; and

• (e) generally for carrying out the purposes and provisions of this Part.

Marginal note:Information to be made available to the public

47 The Minister shall cause information on the manner of applying for a diversion under this Part to be made available throughout Canada in such a manner that the public will have reasonable access thereto.