Pension Benefits Division Act (S.C. 1992, c. 46, Sch. II)

Short Title

Marginal note:Short title

1 This Act may be cited as the Pension Benefits Division Act.

Interpretation

Marginal note:Definitions

2 In this Act,

agreement

  agreement means an agreement referred to in subparagraph 4(2)(b )(ii); (accord)

application

application means an application made under subsection 4(1);  (demande)

common-law partner

  common-law partner means a person who establishes that the person is cohabiting with a member of a pension plan in a relationship of a conjugal nature, having so cohabited for a period of at least one year; (conjoint de fait)

court order

court order means an order referred to in paragraph 4(2)(a) or subparagraph 4(2)(b)(i);  (ordonnance)

member

member, in relation to a pension plan, means a person who is or may become entitled to a pension benefit under that pension plan by reason of

• (a) the person ceasing or having ceased to be employed, to hold an office, to be a member of the Senate or House of Commons or to serve in the Canadian Forces or the Royal Canadian Mounted Police, or

• (b) any other prescribed circumstances; (participant)

Minister

Minister, for the purposes of applications and other matters pertaining to a particular pension plan under this Act, means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council to act as the Minister for the purposes of those applications and matters;  (ministre)

pension benefit

pension benefit means any pension, allowance, annuity, return of contributions or other benefit or amount payable under a pension plan, and includes any benefit or amount payable under the Public Service Pension Adjustment Act, chapter P-33 of the Revised Statutes of Canada, 1970, or the Supplementary Retirement Benefits Act in respect of a pension, allowance or annuity payable under that pension plan;  (prestation de retraite)

pension plan

pension plan means

• (a) a superannuation or pension plan provided by

  • (i) the Public Service Superannuation Act,

  • (ii) the Canadian Forces Superannuation Act,

  • (iii) the Defence Services Pension Continuation Act, chapter D-3 of the Revised Statutes of Canada, 1970,

  • (iv) the Royal Canadian Mounted Police Superannuation Act,

  • (v) the Royal Canadian Mounted Police Pension Continuation Act, chapter R-10 of the Revised Statutes of Canada, 1970,

  • (vi) the Diplomatic Service (Special) Superannuation Act,

  • (vii) the Lieutenant Governors Superannuation Act, or

  • (viii) the Governor General’s Act,

• (b) a pension plan or retirement compensation arrangement provided by the Members of Parliament Retiring Allowances Act, or

• (c) a special pension plan or retirement compensation arrangement established under the Special Retirement Arrangements Act; (régime)

prescribed

prescribed means prescribed by regulation;  (Version anglaise seulement)

spousal agreement

spousal agreement[Repealed, 2000, c. 12, s. 243]

spouse

  spouse, in relation to a member of a pension plan, includes a person who is party to a void marriage with the member. (époux)

Marginal note:Inconsistency with other law

3 In the event of any inconsistency between this Act and the regulations made under this Act and any other law, this Act and the regulations shall prevail to the extent of the inconsistency.

Application for Division

Marginal note:Application

• 4 (1) A member of a pension plan or a spouse, former spouse or former common-law partner of a member may, in the circumstances described in subsection (2), apply to the Minister to divide the member’s pension benefits between the member and the spouse, former spouse or former common-law partner.

• Marginal note:Circumstances in which application may be made

  (2) The circumstances in which an application may be made are:

  • (a) where a court in Canada of competent jurisdiction, in proceedings in relation to divorce, annulment of marriage or separation, makes an order that provides for the pension benefits to be divided between the member and the spouse, former spouse or former common-law partner; or

  • (b) where the member and the spouse, former spouse or former common-law partner are living separate and apart, having lived separate and apart for a period of at least one year and, either before or after they commenced to live separate and apart,

    • (i) a court in Canada of competent jurisdiction makes an order that provides for the pension benefits to be divided between them, or

    • (ii) the member and the spouse, former spouse or former common-law partner have entered into a written agreement that provides for the pension benefits to be divided between them.

• Marginal note:Calculation of period of separation

  (3) For the purposes of paragraph (2)(b),

  • (a) the member and the spouse, former spouse or former common-law partner are 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 the member and the spouse, former spouse or former common-law partner have lived separate and apart shall not be considered to have been interrupted or terminated by reason only

    • (i) that the member or the spouse, former spouse or former common-law partner 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 member’s or the spouse’s, former spouse’s or former common-law partner’s own volition, if it appears to the Minister that the separation would probably have continued if the member or the spouse, former spouse or former common-law partner had not become so incapable, or

    • (ii) that the member and the spouse, former spouse or former common-law partner have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

• Marginal note:Form of application, etc.

  (4) An application must

  • (a) be made in writing and contain the prescribed information; and

  • (b) be accompanied by a certified true copy of the court order or agreement and such other documents as are prescribed.

Marginal note:Notice of receipt of application

• 5 (1) The Minister shall, after receiving an application, send a notice of the receipt in the prescribed manner to each interested party.

• Marginal note:If interested party is not the applicant

  (2) In the case of an interested party who is not the applicant, the notice must

  • (a) include the prescribed information and any other information that the Minister considers necessary; and

  • (b) be accompanied by a copy of the court order or agreement and any other documents that accompanied the application.

• Marginal note:Notice deemed to be received

  (3) The notice is deemed to be received by an interested party thirty days after the day on which it is sent in the prescribed manner to that party.

• Marginal note:Definition of “interested party”

  (4) In this section and sections 6 to 8, interested party means the member of the pension plan and the spouse, former spouse or former common-law partner between whom the member’s pension benefits are sought to be divided.

Marginal note:Interested party may object

• 6 (1) An interested party who objects to the division of the pension benefits on any of the grounds described in subsection (2) may submit a notice of objection in writing to the Minister within sixty days after the day on which notice of the receipt of the application is deemed under subsection 5(3) to be received by that party.

• Marginal note:Grounds for objection

  (2) The grounds for objection are

  • (a) that the court order or agreement has been varied or is of no force or effect;

  • (b) that the terms of the court order or agreement have been or are being satisfied by other means; or

  • (c) that proceedings have been commenced in a court in Canada of competent jurisdiction 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.

Division

Marginal note:Approval of division

• 7 (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 the pension benefits for which the application is made.

• Marginal note:If notice of objection is submitted

  (2) If an interested party submits a notice of objection to the Minister in accordance with section 6, the Minister shall

  • (a) where the grounds for objection are the grounds referred to in paragraph 6(2)(a) or (b), defer any decision on the application until such time as the Minister is able to ascertain to the Minister’s satisfaction whether those grounds have been established; and

  • (b) where the grounds for objection are the grounds referred to in paragraph 6(2)(c), defer any decision on the application until the final disposition of the proceedings on which those grounds are based.

• Marginal note:Minister shall refuse approval

  (3) The Minister shall refuse to approve the division of the pension benefits if

  • (a) the application is withdrawn in accordance with the regulations;

  • (b) where an interested party submits a notice of objection to the Minister in accordance with section 6 and the grounds for objection are the grounds referred to in paragraph 6(2)(a) or (b), the Minister is satisfied that those grounds have been established and that they provide sufficient reason to refuse the division;

  • (c) where an interested party submits a notice of objection to the Minister in accordance with section 6 and the grounds for objection are the grounds referred to in paragraph 6(2)(c), the court order or agreement is of no force or effect as a result of the proceedings on which those grounds are based;

  • (d) the period subject to division cannot be determined under subsection 8(2) or (3); or

  • (e) the Minister is satisfied, based on evidence submitted to the Minister, that it would not be just to approve the division.

• Marginal note:Exception

  (4) Notwithstanding subsection (3), the Minister may approve the division of the pension benefits on the basis of an order of a court issued pursuant to any proceedings referred to in paragraph 6(2)(c).

• Marginal note:Transitional

  (5) The Minister may approve the division of the pension benefits notwithstanding that the court order or agreement on which the application is based was made or entered into before the day on which subsection 4(1) comes into force.

Marginal note:Division

• 8 (1) A division of pension benefits shall be effected by

  • (a) subject to subsection (4), transferring an amount representing fifty per cent of the value of the pension benefits that have accrued to the member of the pension plan during the period subject to division, as determined in accordance with the regulations, to the spouse, former spouse or former common-law partner, if that pension plan is a retirement compensation arrangement, or, in any other case, to

    • (i) a pension plan selected by the spouse, former spouse or former common-law partner that is registered under the Income Tax Act, if that pension plan so permits,

    • (ii) a retirement savings plan or fund for the spouse, former spouse or former common-law partner that is of the prescribed kind, or

    • (iii) a financial institution authorized to sell immediate or deferred life annuities of the prescribed kind, for the purchase from that financial institution of such an annuity for the spouse, former spouse or former common-law partner; and

  • (b) adjusting, in accordance with the regulations, the pension benefits that have accrued to the member of the pension plan under that pension plan, notwithstanding the provisions of that pension plan or the Act under which it is established or by which it is provided.

• Marginal note:Determination of period subject to division

  (2) For the purposes of subsection (1) but subject to subsection (3), the period subject to division is

  • (a) the period specified by the court order or agreement as the period during which the member of the pension plan and the spouse, former spouse or former common-law partner cohabited; or

  • (b) where the court order or agreement does not specify a period as described in paragraph (a), such period as may be determined by the Minister, on the basis of evidence submitted by either of the interested parties or by both, as being the period during which the member of the pension plan and the spouse, former spouse or former common-law partner cohabited.

• Marginal note:Idem

  (3) For the purposes of subsection (1), where the application is based on a court order and the order provides that pension benefits that have accrued to the member of the pension plan during a period specified in the order are to be divided, the period specified in the order is the period subject to division.

• Marginal note:Lump sum payment

  (4) If the court order or agreement provides, or the interested parties agree, that the terms of the court order or agreement shall be satisfied by the payment of a lump sum amount and that lump sum amount, together with such interest as may be required by the regulations, is less than the amount that would otherwise be transferred in accordance with paragraph (1)(a), that lump sum amount, together with that interest, shall be transferred in accordance with that paragraph in lieu of the greater amount.

• Marginal note:Death

  (5) An amount that cannot be transferred in accordance with paragraph (1)(a) by reason only of the death of the spouse, former spouse or former common-law partner shall be paid to their estate or succession.

• Marginal note:Effective date of adjustment

  (6) The adjustment of pension benefits required by paragraph (1)(b) shall be effective as of the date determined in accordance with the regulations, which date may be before the date on which the adjustment is actually made.

• Marginal note:Notice of division

  (7) The Minister shall send a notice of the division of the pension benefits in the prescribed manner to each interested party.

Marginal note:Further divisions precluded

9 Where a division of pension benefits that have accrued to a member of a pension plan during any period is effected under section 8, no further divisions may be made under that section in respect of that period.

General

Marginal note:Amounts transferred in error

10 If the amount transferred in respect of a spouse, former spouse or former common-law partner or paid to their estate or succession under section 8 exceeds the amount that the spouse, former spouse or former common-law partner was entitled to have transferred or the estate or succession was entitled to be paid, the amount in excess constitutes a debt due to Her Majesty in right of Canada by that spouse, former spouse, former common-law partner, estate or succession.

Marginal note:Amounts paid before adjustment

11 Where an adjustment is made under paragraph 8(1)(b) and an amount is or has been paid to a member of a pension plan that exceeds the amount to which that member is or would have been entitled under that pension plan after the effective date of that adjustment, the amount in excess constitutes a debt due to Her Majesty in right of Canada by that member and may be recovered at any time by set-off against any pension benefit that is payable to that member under any pension plan, without prejudice to any other recourse available to Her Majesty in right of Canada with respect to the recovery thereof.

Marginal note:Void transactions

• 12 (1) Amounts that a spouse, former spouse or former common-law partner is or may become entitled to have transferred under section 8 are not capable of being assigned, charged, anticipated or given as security, and any transaction that purports to assign, charge, anticipate or give as security any such amount is void.

• Marginal note:Exemption from attachment, etc.

  (2) Amounts that a spouse, former spouse or former common-law partner is or may become entitled to have transferred under section 8 are exempt from attachment, seizure and execution, either at law or in equity.

Marginal note:Court order

• 13 (1) Notwithstanding any other provision of this Act or the provisions of any pension plan or Act under which a pension plan is established or by which a pension plan is provided, where a court in Canada of competent jurisdiction so orders, the Minister shall not, for such period as that court may order, take any action on the direction of a member of a pension plan that may prejudice the ability of the spouse or former spouse or common-law partner or former common-law partner of that member to make an application or obtain a division of pension benefits under this Act.

• Marginal note:Information

  (2) The Minister shall, in accordance with the regulations, on request of a spouse or former spouse or common-law partner or former common-law partner of a member of a pension plan, provide that person with prescribed information concerning the benefits that are or may become payable to or in respect of that member under that pension plan or under Part II of the Public Service Superannuation Act, Part II of the Canadian Forces Superannuation Act, the Public Service Pension Adjustment Act or the Supplementary Retirement Benefits Act.

Marginal note:Payment out of Consolidated Revenue Fund

14 All amounts payable under this Act shall be paid out of the Consolidated Revenue Fund and be charged to the Consolidated Revenue Fund, to a fund as defined in section 2 of the Public Sector Pension Investment Board Act or to an account or accounts in the accounts of Canada, as provided for by the regulations.

Offence

Marginal note:Offence

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

Regulations

Marginal note:Regulations

16 The Governor in Council may, on the recommendation of the President of the Treasury Board, make regulations

• (a) prescribing the circumstances in which a person may make an application under subsection 4(1) on behalf of another person or may act on behalf of another person in prosecuting an application that has been made by that other person;

• (b) prescribing the circumstances in which the personal representative of a deceased member of a pension plan or of a deceased spouse, former spouse or former common-law partner may make an application under subsection 4(1) or may proceed with an application that was made by the member, spouse, former spouse or former common-law partner;

• (c) where regulations are made under paragraph (a) or (b), respecting the manner in which and the extent to which any provision of this Act applies to a person referred to in that paragraph or in the circumstances prescribed by those regulations, and adapting any provision of this Act to those persons or circumstances;

• (d) respecting the withdrawal of applications;

• (e) for the purposes of paragraph 8(1)(a), for determining, on the basis of generally accepted actuarial principles, the value of the pension benefits that have accrued to a member of a pension plan during the period subject to division;

• (f) for the purposes of paragraph 8(1)(b), respecting the adjustment of the pension benefits that have accrued to a member of a pension plan under that pension plan;

• (g) for the purposes of subsection 8(4), requiring interest to be paid on lump sum amounts and prescribing the rate of interest or the manner of determining the rate of interest;

• (h) for the purposes of subsection 8(6), for determining the effective date of the adjustment of pension benefits;

• (i) respecting the manner in which and the extent to which any provision of a pension plan or an Act under which a pension plan is established or by which a pension plan is provided, as amended from time to time, applies, notwithstanding the provisions of that pension plan or Act, to any member, spouse, former spouse, common-law partner, former common-law partner or other person in any case where a division of pension benefits is effected under section 8, and adapting any provision of that pension plan or Act to those persons;

• (j) respecting the charging of amounts payable under this Act to the Consolidated Revenue Fund, to a fund as defined in section 2 of the Public Sector Investment Board Act or to any account or accounts in the accounts of Canada;

• (k) respecting the provision of information to a spouse, former spouse, common-law partner or former common-law partner of a member of a pension plan under subsection 13(2);

• (l) prescribing any matter or thing that by this Act is to be or may be prescribed; and

• (m) generally as the Governor in Council may consider necessary for carrying out the purposes and provisions of this Act.