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

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 any of sections 12 to 13.001 of the Public Service Superannuation Act or is entitled to do so, and

  • (c) has reached 50 years of age but has not yet reached 60 years of age, if the person has exercised an option under section 12 or 13 of the Public Service Superannuation Act or is entitled to do so, or has reached 55 years of age but has not yet reached 65 years of age, if the person has exercised an option under section 12.1 or 13.001 of that Act or is entitled to do so,

  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:Pension benefit not immediately payable — Canadian Forces

  (1.1) A person who is entitled to support under a valid and subsisting 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 if the person against whom the financial support order is made

  • (a) has ceased to be required to make contributions under section 5 of the Canadian Forces Superannuation Act or has ceased to be a participant under subsection 5(1) of the Reserve Force Pension Plan Regulations;

  • (b) is not a recipient and is entitled to a deferred annuity under section 17 of the Canadian Forces Superannuation Act or subsection 44(1) of the Reserve Force Pension Plan Regulations; and

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

• Marginal note:Order

  (2) A court to which an application is made under subsection (1) or (1.1) may make an order deeming the person against whom there is a valid and subsisting financial support order to have exercised an option under any of sections 12 to 13.001 of the Public Service Superannuation Act, section 18 of the Canadian Forces Superannuation Act or section 45 of the Reserve Force Pension Plan Regulations 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 who is 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 section 35.1.

Marginal note:Representation

35.4 An application under section 35.1 or 35.3 may be made on behalf of a person by any other person or by a provincial enforcement service.

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) if the recipient is domiciled in Canada and habitually 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) if the recipient is domiciled in Canada and habitually 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 50% of the recipient’s net pension benefit,

• (e) if the recipient is domiciled outside Canada and the applicant is habitually 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) if the recipient is domiciled outside Canada and the applicant is habitually 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 50% of the recipient’s net pension benefit, or

• (g) if the recipient and the applicant are domiciled outside Canada and are habitually resident outside Canada, the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% 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 versus lump sum pension benefit

• 39 (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 in accordance with the regulations 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.

• (3) [Repealed, 2019, c. 16, s. 111]

• 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) If, within 90 days after receiving the evidence referred to in subsection (2), the Minister receives a 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:If condition not satisfied

  (6) If a 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 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.