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

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.