Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

Garnishment, Attachment and Pension Diversion Act (R.S.C., 1985, c. G-2)

Act current to 2019-12-03 and last amended on 2019-06-21. Previous Versions

PART IIDiversion of Pension Benefits to Satisfy Financial Support Orders (continued)

Amount of Diversion (continued)

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

 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.

  • R.S., 1985, c. G-2, s. 38
  • 1997, c. 1, s. 35

Marginal note:Periodic financial support order versus lump sum pension benefit

  •  (1) If a financial support order provides only for periodic payments and the recipient’s pension benefit consists only of a lump sum, the Minister shall, immediately 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.

  • R.S., 1985, c. G-2, s. 39
  • 1997, c. 1, s. 36
  • 2019, c. 16, s. 111

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

 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.

  • R.S., 1985, c. G-2, s. 40
  • 1997, c. 1, s. 37

Marginal note:Arrears

 In the case of a financial support order that is an order or judgment for arrears of payments, despite paragraph 36(d), (f) or (g), subsection 37(2) or section 38, 39 or 40, the amount to be diverted may exceed 50% of the recipient’s net pension benefit.

  • 1997, c. 1, s. 38
  • 2019, c. 16, s. 112

General

Marginal note:Designation of Minister

 The Governor in Council may, by order, designate one or more federal ministers as the Minister or Ministers for the purposes of any provision of this Part and the enactments set out in items 12 and 16 of the schedule.

  • 2019, c. 16, s. 113

Marginal note:Application to vary amount being diverted or to terminate diversion

  •  (1) When 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, for a variation in the amount being diverted or for termination of the diversion.

  • Marginal note:When variation or termination effective

    (2) Despite a recipient’s entitlement under an enactment listed in the schedule, the variation or termination of a diversion is effective only as of the first day of the month after the month in which the Minister receives the duly completed application for variation or termination, as the case may be.

  • R.S., 1985, c. G-2, s. 41
  • 2019, c. 16, s. 113

Marginal note:Errors in amounts paid

  •  (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, is a debt due to Her Majesty by the recipient, and may be recovered from the recipient by way of deduction from, or set-off or compensation 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:Recovery

    (2) If a diversion payment made to an applicant is greater than the amount that should have been paid to the applicant under this Part, the amount of the excess is a debt due to Her Majesty by the applicant and may be recovered from the applicant by way of deduction from, or set-off or compensation against, future diversion payments to be paid to the applicant under this Part.

  • R.S., 1985, c. G-2, s. 42
  • 2019, c. 16, s. 114

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

 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.

  • 1980-81-82-83, c. 100, s. 33

Marginal note:Death of recipient

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

  • 1980-81-82-83, c. 100, s. 34

Marginal note:Offence

 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.

  • 1980-81-82-83, c. 100, s. 35

Marginal note:Regulations

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

  • (a) respecting the making of applications on behalf of a person by another person or by a provincial enforcement service under section 33, and respecting the payment of diverted amounts to a person for the benefit of another person or to a provincial enforcement service;

  • (b) respecting the amount or amounts to be diverted from a recipient’s net pension benefit, and respecting 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.

  • R.S., 1985, c. G-2, s. 46
  • 1997, c. 1, s. 39
  • 2019, c. 16, s. 115
 
Date modified: