Contents
Short Title
1Short title#
This Act may be cited as the Garnishment, Attachment and Pension Diversion Act.note
Part I · Garnishment and Attachment Proceedings
Interpretation
2Definitions#
In this Part,
debtor, in respect of a garnishee summons, means the person whose salary or remuneration is sought to be garnisheed; (débiteur)
garnishment includes attachment; (Version anglaise seulement)
Her Majesty means Her Majesty in right of Canada; (Sa Majesté)
parliamentary entity means
(a)the Senate;
(b)the House of Commons;
(c)the Library of Parliament;
(d)the office of the Senate Ethics Officer;
(e)the office of the Conflict of Interest and Ethics Commissioner;
(f)the Parliamentary Protective Service; or
(g)the office of the Parliamentary Budget Officer; (entité parlementaire)
provincial enforcement service has the same meaning as in section 2 of the Family Orders and Agreements Enforcement Assistance Act; (autorité provinciale)
provincial garnishment law means the law of general application of a province relating to garnishment that is in force at the time in question. (droit provincial en matière de saisie-arrêt)
note
Garnishment
3Garnishment permitted#
Despite any law preventing the garnishment of Her Majesty or a parliamentary entity, both may be garnisheed under this Part.note
3.1Garnishment under Acts of Parliament#
For greater certainty, Her Majesty and parliamentary entities are bound by the law relating to garnishment provided under any Act of Parliament.note
Division I — Departments and Certain Crown Corporations
4Definitions#
In this Division,
department has the meaning assigned by paragraphs (a), (a.1), (b) and (d) of the definition department in section 2 of the Financial Administration Act; (ministère)
garnishee summons includes any document that is of a similar nature to a garnishee summons, including a court order and a document in respect of maintenance, alimony or support issued by a provincial enforcement service; (bref de saisie-arrêt)
pay period means, in respect of any particular person, the period beginning on the day after the day that is the regular pay-day of the person and ending on the day that is their next regular pay-day; (période de paye)
prescribed means prescribed by regulations made under this Division; (prescrit ou réglementaire)
salary means
(a)in the case of a judge or associate judge to whom the Judges Act applies, the salary payable under that Act, or
(b)in the case of any other person,
(i)the basic pay payable to that person for the performance of the regular duties of a position or office, and
(ii)any amount payable as allowances, special remuneration, payment for overtime or other compensation or as a gratuity,
excluding any amount deemed to be or to have been excluded from that person’s salary pursuant to regulations made under paragraph 12(b). (traitement)
note
5Garnishment of salaries, remuneration#
Her Majesty is, subject to this Division and any regulation made thereunder, bound by provincial garnishment law in respect of
(a)salaries, and
(b)remuneration as fees, honoraria or other payments of like import, in respect of any office or position or in respect of the performance of any services
payable to judges and associate judges to whom the Judges Act applies, or payable to any other person, excluding corporations, on behalf of a department or by a Crown corporation prescribed under paragraph 12(c) for the purposes of this Division.note
6Service binds Her Majesty#
(1)Subject to this Division, service on Her Majesty of a garnishee summons, together with a copy of the order against a debtor and an application in the prescribed form, binds Her Majesty 15 days after the day on which those documents are served.
(2)A garnishee summons served on Her Majesty is of no effect unless it is served on Her Majesty in the first 45 days following the first day on which it could have been validly served on Her Majesty.
(3)The garnishee summons ceases to bind Her Majesty after the periods and in the circumstances specified in the regulations.
note
7Where documents must be served on Her Majesty#
(1)Service of documents on Her Majesty in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.
(2)In addition to any method of service permitted by the law of a province, service of documents on Her Majesty under subsection (1) may be effected by any prescribed method.
(3)[Repealed, 2019, c. 16, s. 86] (repealed)
note
8Moneys bound by service of garnishee summons#
For the purposes of garnishment proceedings permitted by this Division, service of a garnishee summons binds Her Majesty in respect of the following money to be paid by Her Majesty to the debtor named in the garnishee summons:
(a)in the case of a salary,
(i)the salary to be paid, no later than the last day of the second pay period following the pay period in which Her Majesty is bound by the garnishee summons, and
(ii)where the garnishee summons has continuing effect under the law of the province, the salary to be paid on the last day of each subsequent pay period; or
(b)in the case of remuneration described in paragraph 5(b),
(i)the remuneration payable, in respect of the department or Crown corporation named in the application referred to in section 6, on the fifteenth day following the day on which Her Majesty is bound by the garnishee summons, and
(ii)either
(A)any remuneration becoming payable in respect of that department or Crown corporation in the thirty days following the fifteenth day after the day on which Her Majesty is bound by the garnishee summons that is owing on that fifteenth day or that becomes owing in the fourteen days following that fifteenth day, or
(B)where the garnishee summons has continuing effect under the law of the province, any remuneration becoming payable in respect of that department or Crown corporation subsequent to the fifteenth day after the day on which Her Majesty is bound by the garnishee summons.
note
10Time period for Her Majesty’s response to a garnishee summons#
Her Majesty has the following time period within which to respond to a garnishee summons:
(a)in the case of a salary, fifteen days, or such lesser number of days as is prescribed, after the last day of the second pay period next following the pay period in which Her Majesty is bound by the garnishee summons; or
(b)in the case of remuneration described in paragraph 5(b), fifteen days, or such lesser number of days as is prescribed, after the day on which the remuneration is garnisheed.
note
11Methods of response#
(1)In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, Her Majesty may respond to a garnishee summons by any prescribed method.
(2)Where Her Majesty responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that Her Majesty has responded to the garnishee summons.
(3)A payment into court by Her Majesty is a good and sufficient discharge of Her Majesty’s liability, to the extent of the payment.
(3.1)If provincial garnishment law permits a payment to a provincial enforcement service of the province, a payment to the provincial enforcement service by Her Majesty is a good and sufficient discharge of Her Majesty’s liability, to the extent of the payment.
(4)If, in honouring a garnishee summons, Her Majesty, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that Her Majesty should have paid to that debtor, the excess is a debt due to Her Majesty by that debtor and may be recovered from the debtor by way of deduction from, or set-off or compensation against, future moneys payable to the debtor as salary or remuneration.
(5)If moneys are paid by Her Majesty to or for the benefit of a party who instituted garnishment proceedings permitted by this Division in excess of the amount that should be paid to or for the benefit of that party, the excess is a debt due to Her Majesty by that party and may be recovered from the party by way of deduction from, or set-off or compensation against, moneys payable to or for the benefit of that party under this Division.
note
12Regulations#
The Governor in Council may, on the recommendation of the Minister, make regulations
(a)specifying the place where service of documents on Her Majesty must be effected in connection with garnishment proceedings permitted by this Division;
(a.1)respecting methods of service of documents and providing for the day on which service of documents on Her Majesty is deemed to be effected;
(b.1)specifying periods and circumstances for the purpose of subsection 6(3);
(c)prescribing Crown corporations for the purposes of this Division; and
(d)prescribing any other matters that are by this Division to be prescribed.
note
13Information to be made available to public#
The Minister shall cause information on the manner of commencing garnishment proceedings permitted by this Division to be made available throughout Canada in such a manner that the public will have reasonable access thereto.note
Division II — Crown Corporations not Covered by Division I
14Crown corporations#
(1)Subject to subsection (2), in respect of moneys payable by Crown corporations not prescribed under paragraph 12(c) for the purposes of Division I, Her Majesty is bound by provincial garnishment law.
(2)In respect of Crown corporations to which subsection (1) applies that are prescribed under subsection (3) for the purposes of this subsection, Her Majesty is not bound by provincial garnishment law in relation to a “pension benefit” as defined in Part II.
(3)The Governor in Council may, on the recommendation of the Minister, make regulations prescribing Crown corporations for the purposes of subsection (2).
note
Division III — Canadian Forces
15Canadian Forces#
In respect of pay and allowances payable to members of the Canadian Forces, Her Majesty is bound by provincial garnishment law to the extent, in the manner, and subject to the terms and conditions that may be provided by or under regulations made under the National Defence Act.note
Division IV — Parliamentary Entities
16Definitions#
In this Division,
garnishee summons includes any document that is of a similar nature to a garnishee summons, including a court order and a document in respect of maintenance, alimony or support issued by a provincial enforcement service; (bref de saisie-arrêt)
pay period means, in respect of any particular person, the period beginning on the day after the day that is the regular pay-day of the person and ending on the day that is their next regular pay-day; (période de paye)
prescribed means prescribed by regulations made under this Division; (prescrit ou réglementaire)
salary means
(a)in the case of a member of the Senate or House of Commons, all moneys payable under the Parliament of Canada Act, the Salaries Act and any appropriation Act, other than moneys not included in computing the member’s income for the purposes of Part I of the Income Tax Act, or
(b)in the case of the staff of a parliamentary entity or the staff of members of the Senate or House of Commons, or in the case of any other person paid out of moneys appropriated by Parliament for use by a parliamentary entity,
(i)the basic pay payable to a person for the performance of the regular duties of a position or office, and
(ii)any amount payable as allowances, special remuneration, payment for overtime or other compensation or as a gratuity,
excluding any amount deemed to be or to have been excluded from that person’s salary pursuant to regulations made under paragraph 24(b). (traitement)
note
17Garnishment of salaries, remuneration#
Each parliamentary entity is, subject to this Division and any regulation made under it, bound by provincial garnishment law in respect of
(a)salaries; and
(b)remuneration to persons, excluding corporations, as fees, honoraria or other payments of like import, in respect of any office or position or in respect of the performance of any services.
note
18Service binding#
(1)Subject to this Division, service on a parliamentary entity of a garnishee summons, together with a copy of the order against a debtor and an application in the prescribed form, binds the parliamentary entity, 15 days after the day on which those documents are served.
(2)A garnishee summons served on the parliamentary entity is of no effect unless it is served in the first 45 days following the first day on which it could have been validly served.
(3)The garnishee summons ceases to bind the parliamentary entity after the periods and in the circumstances specified in the regulations.
note
19Place of service#
(1)Service of documents on a parliamentary entity in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.
(2)In addition to any method of service permitted by the law of a province, service of documents under subsection (1) may be effected by any prescribed method.
note
21Moneys bound by service of garnishee summons#
For the purposes of garnishment proceedings permitted by this Division, service of a garnishee summons is binding in respect of the following money to be paid to the debtor named in the garnishee summons:
(a)in the case of a salary,
(i)the salary to be paid, no later than the last day of the second pay period following the pay period in which the parliamentary entity is bound by the garnishee summons, and
(ii)where the garnishee summons has continuing effect under the law of the province, the salary to be paid on the last day of each subsequent pay period; or
(b)in the case of remuneration described in paragraph 17(b),
(i)the remuneration payable on the 15th day following the day on which the parliamentary entity is bound by the garnishee summons, and
(ii)either
(A)any remuneration becoming payable in the 30 days following the 15th day after the day on which the parliamentary entity is bound by the garnishee summons that is owing on that 15th day or that becomes owing in the 14 days following that 15th day, or
(B)if the garnishee summons has continuing effect under the law of the province, any remuneration becoming payable subsequent to the 15th day after the day on which the parliamentary entity is bound by the garnishee summons.
note
22Time period to respond to garnishee summons#
The parliamentary entity has the following time period within which to respond to a garnishee summons:
(a)in the case of a salary, 15 days, or any lesser number of days that is prescribed, after the last day of the second pay period next following the pay period in which the parliamentary entity is bound by the garnishee summons; or
(b)in the case of remuneration described in paragraph 17(b), fifteen days, or such lesser number of days as is prescribed, after the day on which the remuneration is garnisheed.
note
23Methods of response#
(1)In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, the parliamentary entity may respond to a garnishee summons by any prescribed method.
(2)If the parliamentary entity responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that the entity has responded to the garnishee summons.
(3)A payment into court by the parliamentary entity is a good and sufficient discharge of its liability, to the extent of the payment.
(3.1)If provincial garnishment law permits a payment to a provincial enforcement service of the province, a payment to the provincial enforcement service by the parliamentary entity is a good and sufficient discharge of its liability, to the extent of the payment.
(4)If, in honouring a garnishee summons, a parliamentary entity, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that it should have paid to that debtor, the excess is a debt due to the entity by that debtor and may be recovered from the debtor by way of deduction from, or set-off or compensation against, future moneys payable to the debtor as salary or remuneration.
(5)If moneys are paid by a parliamentary entity to or for the benefit of a party who instituted garnishment proceedings permitted by this Division in excess of the amount that should be paid to or for the benefit of that party, the excess is a debt due to the entity by that party and may be recovered from the party by way of deduction from, or set-off or compensation against, moneys payable to or for the benefit of that party under this Division.
note
24Regulations#
The Governor in Council may, on the recommendation of the Minister, made after consultation between the Minister and the Speaker of the Senate and the Speaker of the House of Commons, make regulations
(a)specifying the place where service of documents on the parliamentary entities must be effected in connection with garnishment proceedings permitted by this Division;
(a.1)respecting methods of service of documents and providing for the day on which service of documents on the parliamentary entities is deemed to be effected;
(b.1)specifying periods and circumstances for the purpose of subsection 18(3); and
(c)prescribing any other matters that are by this Division to be prescribed.
note
25Information to be made available to public#
The Speaker of the Senate and the Speaker of the House of Commons shall cause information on the manner of commencing garnishment proceedings permitted by this Division to be made available throughout Canada in such a manner that the public will have reasonable access thereto.note
26No execution#
No execution shall issue on an order made against a parliamentary entity in garnishment proceedings permitted by this Part.note
Division V — General
27Inconsistency between federal and provincial law#
In the event of any inconsistency between this Part, any other Act of Parliament or a regulation made under this Part or under any other Act of Parliament, and the provincial garnishment law, the provincial garnishment law is overridden to the extent of the inconsistency.note
27.1Ranking of Her Majesty#
Her Majesty ranks in priority over the party that instituted the garnishment proceedings permitted under this Part with respect to any moneys that are payable to the debtor even though a garnishee summons in respect of those moneys has been served on Her Majesty or a parliamentary entity and the amount of the indebtedness may be recovered or retained in any manner authorized by law when a debtor is indebted
(a)to Her Majesty; or
(b)to Her Majesty in right of a province on account of taxes payable to any province and an agreement exists between Canada and the province under which Canada is authorized to collect the tax on the province’s behalf.
note
27.2Priority of garnishee summons#
Subject to section 27.1, in the application of this Part, a garnishee summons for a maintenance, alimony or support obligation shall be honoured before any other garnishee summons.note
28No execution against Her Majesty#
No execution shall issue on an order made against Her Majesty in garnishment proceedings permitted by this Part.note
29Regulations#
The Governor in Council may,
(a)on the recommendation of the Minister, make regulations generally for carrying out the purposes and provisions of Divisions I, II and III; and
note
30Prohibition#
No employee shall be dismissed, suspended or laid off solely on the ground that garnishment proceedings permitted by this Part may be or have been taken with respect to that employee.note
Part II · Diversion of Pension Benefits to Satisfy Financial Support Orders
Application of Part
Interpretation
32Definitions#
(1)In this Part,
applicant means a person by or on behalf of whom an application is made to the Minister for a diversion of a pension benefit under this Part; (requérant)
application [Repealed, 2019, c. 16, s. 105]
financial support order means, subject to subsection (2), an order, judgment, decision or agreement for maintenance, alimony or support — whether interim or final — that is enforceable in a province; (ordonnance de soutien financier)
Her Majesty means Her Majesty in right of Canada; (Sa Majesté)
net pension benefit means a pension benefit minus the prescribed deductions; (prestation nette de pension)
pension benefit means
(a)any of the following benefits payable under an enactment that is listed in the schedule:
(i)a pension,
(ii)an annual allowance,
(iii)an annuity,
(iv)a lump sum return of pension contributions, including interest, if any,
(v)a gratuity,
(vi)a cash termination allowance,
(vii)a withdrawal allowance, including interest, if any,
(viii)a transfer value, or
(ix)a bridge benefit, and
(b)any benefit payable under the Supplementary Retirement Benefits Act or the Public Service Pension Adjustment Act, chapter P-33 of the Revised Statutes of Canada, 1970, in respect of a pension, annual allowance or annuity referred to in paragraph (a); (prestation de pension)
prescribed means prescribed by regulation made under this Part; (prescrit ou réglementaire)
provincial enforcement service has the same meaning as in section 2 of the Family Orders and Agreements Enforcement Assistance Act; (autorité provinciale)
recipient means
(a)in respect of a benefit referred to in any of subparagraphs (a)(i) to (vii) of the definition pension benefit, a child or other person to whom the benefit is immediately payable, but does not include a child or other person whose entitlement to the benefit is based on their status as a survivor of the person who was originally entitled to the benefit or would have been entitled to it had death not intervened, or
(b)in respect of a benefit referred to in subparagraph (a)(viii) or (ix) of the definition pension benefit, a person who is entitled to the benefit. (prestataire)
(2)For the purposes of this Part, the Minister shall disregard a component of a financial support order the dollar value of which cannot be readily ascertained from the financial support order itself or from the Minister’s records relating to the recipient’s pension benefit.
(3)With respect to the expression “the law of that province” in paragraphs 36(c) and (e), where the law of the province refers to the percentage or the maximum percentage of a pension that is to be or may be garnisheed, attached or diverted, the reference to “pension”, or equivalent expression, in the law of the province shall be construed, for the purpose of this Part, to mean “net pension benefit” as defined in this section.
(4)Where a financial support order is expressed in terms of a percentage of a recipient’s pension, the reference to “pension”, or equivalent expression, in the financial support order shall be construed, for the purpose of this Part, to mean “net pension benefit” as defined in this section.
note
Conditions for Diversion of Pension Benefits
33Application for diversion#
(1)Subject to this Part and the regulations, a person named in a financial support order may make an application to the Minister for diversion of a pension benefit payable to a recipient if
(a)the order is valid and subsisting; and
(2)The application may be made, in accordance with the regulations, on behalf of a person by any other person or by a provincial enforcement service.
(2.1)The application must contain the prescribed information and be accompanied by the prescribed documents.
(2.2)A provincial enforcement service may, in respect of an application referred to in subsection (1), submit a document to the Minister that sets out a recipient’s arrears of maintenance, alimony or support and any prescribed information.
(3)The Minister shall, not later than the first day of the fourth month after the month in which the Minister receives the duly completed application, divert an amount or amounts computed in accordance with sections 36 to 40 and the regulations from any net pension benefit that is payable to the recipient named in the application, and any amount so diverted shall be paid, subject to subsection (4), to the applicant, to any other person designated for that purpose in the financial support order or to a provincial enforcement service if the law of the province permits payment to it.
(4)Where, pursuant to this section, a diverted amount is to be paid to an applicant who is under eighteen years of age, payment thereof shall instead be made to the person having the custody and control of that applicant or, where there is no person having custody and control of that applicant, to such person as the Minister may direct.
note
34Minister to notify recipient where a diversion is to be made#
(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.
note
35Conditions for diversion of pension benefits#
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.
note
35.1Where pension benefit not immediately payable — Public Service Superannuation Act#
(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.
(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.
(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.
note
35.3Provision of information#
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.note
35.4Representation#
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.note
Amount of Diversion
36Rules governing amount of diversion#
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,
(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,
(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.
the amount to be diverted from the recipient’s net pension benefit shall be governed by the following rules:note
37Lump sum financial support order vs. periodic pension benefit#
(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).
(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.
(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.
(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.
note
38Financial 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.
note
39Periodic 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 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.
(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] (repealed)
(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.
(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.
(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.
note
40Financial 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.
note
40.1Arrears#
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.note
General
41Application to vary amount being diverted or to terminate diversion#
(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.
note
42Errors 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.
(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.
note
43Where 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.note
44Death of recipient#
Periodic diversion payments shall terminate at the end of the month in which the recipient dies.note
45Offence#
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.note
46Regulations#
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;
(a.1)respecting documents which must accompany an application made under section 33, which documents may vary according to the applicant and the circumstances specified in the regulations;
(a.2)respecting the submission of the document referred to in subsection 33(2.2);
(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;
(b.2)respecting methods of notification for the purpose of section 39 and providing for the day on which notification is deemed to be effected for the purpose of that section;
(b.3)prescribing the circumstances in which a copy of the financial support order referred to in subsection 39(5) is to be certified;
(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.
note
Part III · General Provisions
49Research#
(1)The Minister may undertake research related to matters governed by this Act.
(2)The Minister shall not collect information for the purpose of subsection (1) from a parliamentary entity unless the Minister entered into an agreement to do so with the entity in question.
(3)For the purpose of this section, parliamentary entity has the same meaning as in section 2.
note
50Prohibition#
An officer or employee of, or person who is hired on a contractual basis by, Her Majesty in right of Canada or a parliamentary entity who obtains personal information, as defined in section 3 of the Privacy Act, under this Act shall not, except in performing their duties under this Act or if so authorized under another Act of Parliament, knowingly communicate the information or allow it to be communicated to any person, or knowingly allow any person to inspect or have access to any statement or other writing containing the information.note
(Section 31, subsection 32(1), section 40.2 and subsection 41(2))
1 | Governor General’s Act.2 | Lieutenant Governors’ Superannuation Act.3 | Members of Parliament Retiring Allowances Act.4 | Judges Act.5 | Diplomatic Service (Special) Superannuation Act.6 | Public Service Superannuation Act.7 | Civil Service Superannuation Act.8 | Canadian Forces Superannuation Act.9 | Defence Services Pension Continuation Act, R.S.C. 1970, c. D-3.10 | Royal Canadian Mounted Police Superannuation Act, Parts I and III.11 | Royal Canadian Mounted Police Pension Continuation Act, R.S.C. 1970, c. R-10, Parts II and III.12 | Regulations made by the Governor in Council or the Treasury Board that, in the opinion of the Minister, provide for the payment out of the Consolidated Revenue Fund of a pension to be charged to the Public Service Superannuation Account that is calculated on the basis of length of service of the person to or in respect of whom it was granted or is payable.13 | [Repealed, 2019, c. 16, s. 119]14 | War Veterans Allowance Act, subsection 28(10).15 | Regulations made under Vote 181 of Appropriation Act No. 5, 1961.16 | An appropriation Act of Parliament that, in the opinion of the Minister, provides for the payment of a pension calculated on the basis of length of service of the person to or in respect of whom it was granted or is payable.17 | Tax Court of Canada Act.18 | Special Retirement Arrangements Act.
Federal laws of Canada reproduced under the Reproduction of Federal Law Order (SI/97-5); not the official version. Source: Justice Laws Website.