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.