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This Act is current to November 29, 2017
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Family Law Act

[SBC 2011] CHAPTER 25

Part 6 — Pension Division

Division 1 — General Matters

Definitions

110  In this Part and the regulations made under section 246 [regulations respecting pension division]:

"administrator" means a person responsible for administering a plan

(a) under the terms of the plan,

(b) as required by the Pension Benefits Standards Act or equivalent legislation in another jurisdiction, or

(c) as required by the Pooled Registered Pension Plans Act or equivalent legislation in another jurisdiction,

and includes the administrator of a supplemental plan and the issuer of an annuity;

"beneficiary" means a person entitled to receive benefits on the death of a member;

"benefit", in relation to a plan, means a pension or other monetary amount a person is or may become entitled to receive under the plan, but does not include a refund of actuarial excess or surplus;

"benefit formula provision" means

(a) a defined benefit provision,

(b) a target benefit provision, or

(c) any provision of the plan text document of a plan that is prescribed under the Pension Benefits Standards Act to be a benefit formula provision;

"commuted value" means the commuted value of a benefit, determined in accordance with the Pension Benefits Standards Act;

"defined benefit provision" means a provision of the plan text document of a plan that establishes a formula by which the amount of the pension that is to be paid to a member is determined, but does not include a target benefit provision or a provision that is prescribed under the Pension Benefits Standards Act to be a benefit formula provision;

"defined contribution account" means the account referred to in paragraph (a) of the definition of "defined contribution provision";

"defined contribution provision" means a provision of the plan text document of a plan that

(a) contemplates that an actual or notional account will be maintained to record

(i) the contributions, other than additional voluntary contributions within the meaning of the Pension Benefits Standards Act, made by or on behalf of a member,

(ii) the interest, within the meaning of the Pension Benefits Standards Act, allocated to the account, and

(iii) administration expenses and other money deducted by payment, transfer or withdrawal from the money referred to in subparagraphs (i) and (ii), and

(b) provides that the benefits to which the member is entitled under the provision are determined solely by reference to the amount of that account;

"extraprovincial plan", subject to the regulations, means a plan that is not a local plan, and includes a supplemental plan to an extraprovincial plan;

"former Act" means the Family Relations Act, R.S.B.C. 1996, c. 128;

"hybrid plan", subject to the regulations, means any of the following:

(a) a plan if some of the benefits under the plan are determined under a defined contribution provision and other benefits under the plan are determined under a benefit formula provision;

(b) a plan if one of the following applies:

(i) a member may choose whether benefits are determined under either or both of a defined contribution provision and a benefit formula provision;

(ii) the plan text document contains rules that provide whether benefits are determined under either or both of a defined contribution provision and a benefit formula provision;

(c) a prescribed plan;

"joint and survivor pension" means a pension payable during the lives of the member and another person and, after the death of one of them, to the survivor for life;

"limited member" means a person designated under section 113 [designation of limited members] as a limited member of a local plan;

"local plan", subject to the regulations, means any of the following:

(a) a plan that is established by the government;

(b) a plan that

(i) is registered under the Pension Benefits Standards Act, the Pooled Registered Pension Plans Act or legislation equivalent to either in another jurisdiction, and

(ii) has members who accrue, or have accrued, entitlement to benefits under the plan from employment, or in the case of a pooled registered pension plan, self-employment, in British Columbia;

(c) a plan that is subject to this Part

(i) by the terms of the plan,

(ii) by the operation of legislation, in British Columbia or another jurisdiction, that regulates the plan,

(iii) by reason of the requirements of the Pension Benefits Standards Act and a reciprocal agreement between governments, or

(iv) by reason of the requirements of a reciprocal agreement between governments in respect of the Pooled Registered Pension Plans Act and equivalent legislation of the jurisdictions of the other governments;

(d) a prescribed plan;

(e) a plan for specified individuals that

(i) is registered under the Pension Benefits Standards Act, or

(ii) has members who accrue, or have accrued, entitlement to benefits under the plan from employment in British Columbia;

"member", in relation to a plan, means a person, other than a limited member, who

(a) has made contributions to the plan or on whose behalf an employer is or was required by the plan to make contributions, and who has not terminated membership or begun receiving a pension,

(b) retains a present or future entitlement to receive a benefit under the plan, or

(c) has begun

(i) receiving a pension, or

(ii) if the member is or was entitled to receive benefits under a defined contribution provision, making withdrawals from the member's defined contribution account;

"pension" means a series of periodic payments that, under the terms of the plan text document of a plan, is payable,

(a) in the case of payments under a benefit formula provision, for the life of a member, whether or not the pension is continued to another person,

(b) in the case of an annuity purchased by an administrator for a member, for the life of the member, whether or not the pension is continued to another person,

(c) in the case of payments under a defined contribution provision, until the earlier of

(i) the date on which the member dies, and

(ii) the date on which the balance in the member's defined contribution account is zero, or

(d) in the case of a supplemental plan, for the life of a member or for a shorter period, whether or not the payments are continued to another person;

"phased retirement benefit", in relation to a member of a plan who is at least 60 years of age, or is at least 55 years of age and entitled under the plan to receive a pension without reduction, means payments out of the plan of an amount that is payable periodically to the member for a period other than for the life of the member;

"phased retirement period" means the period during which phased retirement benefits are to be paid to a person who is eligible to receive them;

"plan" means a plan, a scheme or an arrangement, other than a prescribed plan, scheme or arrangement, organized and administered to provide pensions for members;

"plan text document", in relation to a plan, means the record that sets out the rights, obligations and entitlements under the plan;

"proportionate share" means a fraction calculated in accordance with the regulations, an agreement or an order;

"separate pension" means the share of a member's benefits, determined in accordance with the regulations, that is

(a) payable to a limited member until the earlier of the death of the limited member and the termination of benefits under the plan, and

(b) separate from the benefits payable to the member;

"specified individuals" has the same meaning as in section 8515 (4) of the Income Tax Regulations under the Income Tax Act (Canada);

"supplemental plan", subject to the regulations, means a plan

(a) under which initial and continuing membership is subject to first having membership in another plan, and

(b) under which benefits are provided that supplement those provided under the other plan;

"survivor benefits" means lump-sum or periodic benefits paid under a plan to a beneficiary when a member dies;

"target benefit provision" means a provision of the plan text document of a plan that

(a) establishes a formula by which the amount of the pension that is intended to be payable to a member is to be determined, and

(b) provides that the actual benefit under the plan may be reduced below the intended benefit;

"transfer" means a transfer made in accordance with the regulations.

Benefits to be determined in accordance with this Part

111  (1) If a spouse is entitled under Part 5 [Property Division] to an interest in benefits, the spouse's share of the benefits and the manner in which the spouse's entitlement to benefits is to be satisfied must be determined in accordance with this Part, unless an agreement or order provides otherwise.

(2) For the purposes of this Part, all of a member's benefits are deemed to be allocated to the member if an agreement between that member and that member's spouse, or if an order,

(a) is silent on entitlement to benefits, and

(b) represents a final settlement and separation of the financial affairs of the member and the spouse in recognition of the end of the relationship between the spouses.

(3) Nothing in subsection (2) affects a court's jurisdiction under Part 5 in relation to an agreement or order.

(4) Without limiting subsection (1) but subject to subsection (2), if

(a) a spouse of a member of a plan is entitled under Part 5 [Property Division] to an interest in benefits payable to the member, and

(b) before the spouse receives his or her share of those benefits, the member becomes entitled to receive additional amounts under the plan, including, without limitation, a refund of actuarial excess or surplus within the meaning of the Pension Benefits Standards Act,

the spouse is entitled to an interest in those additional amounts.

Original agreements and orders

112  (1) In this section, "original agreement or order" means an agreement or order, made at any time, that provides for the division of benefits, under a local plan, other than in accordance with this Part.

(2) If an original agreement or order provides that benefits are not divisible, provides for a method of division other than in accordance with this Part, or is silent on entitlement to benefits, a member and a spouse may agree to have benefits divided under this Part at any time before the earliest of the following:

(a) benefits are divided under the original agreement or order;

(b) the member or spouse dies;

(c) benefits are terminated under the plan.

(3) If the original agreement or order provides that the member must pay the spouse a proportionate share of benefits under a plan when the member's pension commences,

(a) if the member's pension has not commenced,

(i) the member and spouse may agree, by the spouse giving notice under Division 2 [Division of Benefits under Local Plans] of this Part, to divide benefits in accordance with this Part, and

(ii) unless the member and spouse agree otherwise, the original agreement or order must be administered in accordance with the regulations, or

(b) regardless of whether the member's pension has commenced, the spouse may choose to have benefits divided in accordance with section 117 [local plans after pension commencement].

(4) Subsection (3) (b) does not apply if the original agreement or order expressly prohibits the division of benefits under Part 6 of the former Act or under this Part.

(5) Unless an agreement or order provides otherwise, a term in the agreement or order that requires a member to sever, or to assist a spouse in severing, the spouse's share from the member's benefits under a plan as soon as it becomes possible to do so is conclusively deemed to be an agreement referred to in subsection (3) (a) (i) of this section, made as of the date the administrator receives notice that the spouse is to be designated as a limited member or is entitled to benefits under section 114 [benefits determined under defined contribution provision].

Designation of limited members

113  (1) This section applies if benefits

(a) are under a local plan or under a supplemental plan to a local plan, and

(b) are to be divided in any manner other than by way of an immediate transfer from a defined contribution account under section 114 (2) (a).

(2) A spouse may be designated as a limited member of the local plan or of a supplemental plan to the local plan by either the member or the spouse giving notice in accordance with section 136 [notice or waiver].

(3) A limited member has the following rights:

(a) to receive from the administrator benefits as determined under section 115 [benefits determined under defined benefit formula provision] or 117 [local plans after pension commencement], as applicable;

(b) to enforce rights under the plan and recover damages for losses suffered as a result of a breach of a duty owed by the administrator to the limited member;

(c) except as modified by this Part and the regulations made under it, all of the rights that a member, within the meaning of this Act, has under the Pension Benefits Standards Act or Pooled Registered Pension Plans Act, as applicable;

(d) the additional rights that are set out in this Part.

(4) A spouse ceases to be a limited member if the commuted value of the spouse's proportionate share of benefits is transferred under this Part to the credit of the spouse.

Division 2 — Division of Benefits under Local Plans

Benefits determined under defined contribution provision

114  (1) This section applies if the benefits to be divided

(a) are under a local plan, and

(b) are in a defined contribution account.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver],

(a) to have the spouse's proportionate share of the member's defined contribution account transferred from the plan to the credit of the spouse, or

(b) if the administrator consents, to have the spouse's proportionate share administered under the plan subject to the same terms and conditions that apply to members.

Benefits determined under defined benefit formula provision

115  (1) This section applies if

(a) the benefits to be divided are under a local plan and are determined under a benefit formula provision, and

(b) the pension has not commenced.

(2) Subject to subsection (3), a limited member is entitled, on giving notice in accordance with section 136 [notice or waiver],

(a) to receive the limited member's proportionate share of the benefits by a separate pension, or

(b) to have the limited member's proportionate share of the commuted value of the benefits transferred from the plan to the credit of the limited member.

(3) A separate pension under subsection (2) (a) may commence, or a transfer under subsection (2) (b) may be made, no earlier than the earliest date that the member could elect to have the member's pension commence.

(4) A limited member who chooses to receive a separate pension under subsection (2) (a) may choose, in the notice referred to in subsection (2), to receive benefits by any method the member could receive benefits.

(5) A limited member is entitled, before his or her separate pension commences and during any applicable phased retirement period, to receive a proportionate share of the phased retirement benefit paid to the member under the Pension Benefits Standards Act.

(6) If the member terminates membership in the plan and chooses to have his or her share of the benefits transferred from the plan, the limited member's proportionate share must be transferred from the plan to the credit of the limited member unless

(a) the administrator consents to continue administering, under the plan, the limited member's proportionate share, or

(b) the limited member has commenced receiving a separate pension before the member terminates membership in the plan.

Local hybrid plans

116  (1) This section applies if

(a) the benefits to be divided are under a local plan that is a hybrid plan, and

(b) the pension under the benefit formula provision has not commenced.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver], to a division of benefits as follows:

(a) if the member may choose to receive benefits under either or both of the defined contribution provision and the benefit formula provision, that choice is available to the spouse also;

(b) if the administrator consents, the spouse may choose to receive benefits as if all of the benefits were under

(i) the defined contribution provision, or

(ii) the benefit formula provision;

(c) if benefits are determined under either or both of the defined contribution provision and the benefit formula provision,

(i) to the extent that benefits are determined under a defined contribution provision, section 114 [benefits determined under defined contribution provision] applies, and

(ii) to the extent that benefits are determined under a benefit formula provision, section 115 [benefits determined under defined benefit formula provision] applies.

Local plans after pension commencement

117  (1) This section applies if

(a) the benefits to be divided

(i) are under a local plan, and

(ii) are not in a defined contribution account, and

(b) the pension has commenced.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver], to receive a proportionate share of benefits payable under the plan during the member's lifetime until the earlier of

(a) the death of the spouse, and

(b) the termination of benefits under the plan.

(3) The references in subsection (2) to "benefits" do not include a member's phased retirement benefit under the Pension Benefits Standards Act.

(4) If the member dies before the limited member and the limited member is entitled to survivor benefits under the plan, the limited member's entitlement is to be determined in accordance with section 124 (5) [death of member or limited member].

Division 3 — Division of Other Benefits

Annuities

118  Unless an agreement or order provides otherwise, if a member receives benefits under an annuity that is purchased by the member rather than by an administrator on behalf of the member, the provisions under this Part that apply to the division of benefits after pension commencement apply to the division of the annuity.

Supplemental plans

119  (1) This section applies if a member has or may acquire benefits under a supplemental plan to a local plan.

(2) A spouse who is entitled to a proportionate share of a member's benefits under a local plan is entitled, by giving notice in accordance with section 136 [notice or waiver],

(a) to be designated as a limited member of the supplemental plan, and

(b) to receive a proportionate share of benefits under the supplemental plan.

(3) The division of benefits under a supplemental plan is as follows:

(a) if the benefits to be divided are under the supplemental plan and not in a defined contribution account and if the pension has commenced, section 117 [local plans after pension commencement] applies;

(b) if the administrator consents, a limited member is entitled to receive the proportionate share of benefits by any other method that would apply to these benefits if they were provided under a local plan;

(c) in any other case, a limited member is entitled to receive a proportionate share of benefits by a separate pension when the member elects to have the member's pension commence.

(4) Despite any other provision, payment of a spouse's proportionate share of benefits under a supplemental plan

(a) is subject to the same terms and conditions that apply to the payment of benefits to members of the supplemental plan, and

(b) is adjusted, is suspended or ends if the member's benefits are adjusted, are suspended or end because the member violated a condition of the supplemental plan.

Compensation for lost supplemental benefits

120  (1) If an act or omission by a member of a supplemental plan causes a loss to a spouse respecting the spouse's proportionate share of benefits under the supplemental plan, the Supreme Court, on application by that spouse, may order the member to pay compensation to that spouse.

(2) In determining whether to make an order under subsection (1) and the amount of compensation to award if an order is made, the court must consider

(a) whether the member acted unreasonably or in bad faith,

(b) whether the member obtained an advantage as a result of the act or omission, and

(c) the financial arrangements and division of property respecting the member and the spouse when the relationship between the spouses ended.

Benefits for specified individuals

121  (1) This section applies

(a) in respect of a local plan whose only members are specified individuals, and

(b) if the pension has not commenced.

(2) A spouse is entitled, by giving notice in accordance with section 136 [notice or waiver],

(a) to be designated as a limited member of the plan, and

(b) to a proportionate share of benefits under the plan.

(3) A spouse who, as a limited member, is entitled under subsection (2) to receive a proportionate share of benefits may receive that proportionate share

(a) by a separate pension when the member elects to have the member's pension commence,

(b) in accordance with section 114 [benefits determined under defined contribution provision], if the benefits are in a defined contribution account, when the member makes withdrawals from that account, or

(c) if the administrator consents, by a method referred to in section 114 [benefits determined under defined contribution provision], 115 [benefits determined under defined benefit formula provision] or 116 [local hybrid plans].

Disability benefits

122  (1) This section applies if benefits are paid to a member under a plan as a consequence of the member's disability.

(2) If a spouse is entitled under an agreement or order to receive a proportionate share of disability benefits paid under the plan,

(a) the disability benefits are to be divided by giving notice in accordance with section 136 [notice or waiver],

(b) the disability benefits are to be divided in accordance with section 117 [local plans after pension commencement], and

(c) the division of the disability benefits continues until the earlier of

(i) the death of the spouse, and

(ii) the termination of disability benefits under the plan.

(3) If an agreement or order dividing benefits is silent on entitlement to disability benefits, all of a member's disability benefits are deemed to be allocated to the member.

(4) A member's entitlement to disability benefits does not affect how other benefits under a plan are divided between the member and the member's spouse.

(5) Nothing in subsection (3) affects a court's jurisdiction under Part 5 [Property Division] in relation to an agreement or order.

Extraprovincial plans

123  (1) This section applies if the benefits to be divided are under an extraprovincial plan.

(2) A spouse is entitled to a division of benefits under an extraprovincial plan as follows:

(a) subject to subsection (3), if the plan, or the legislation of any jurisdiction establishing or regulating the plan, provides a method of satisfying the interest of the spouse in the benefits, by that method;

(b) in any other case, to receive from the administrator during the member's lifetime a proportionate share of benefits paid under the plan until the earlier of

(i) the death of the spouse, and

(ii) the termination of benefits under the plan.

(3) If, having regard to the rules respecting the division of benefits under this Part, the method under subsection (2) (a) would operate unfairly, the Supreme Court may order that the spouse's proportionate share of the benefits be satisfied in accordance with subsection (2) (b) instead.

(4) If subsection (2) (b) applies,

(a) the member must designate the spouse as the beneficiary under the plan to the extent of the spouse's interest in the benefits, unless the designation is not possible,

(b) if the member's pension is in the form of a joint and survivor pension with a spouse, the spouse is the owner of the survivor benefits, and

(c) subject to the entitlement, if any, of another spouse, a spouse who is a beneficiary of survivor benefits is entitled to all of the survivor benefits.

Division 4 — Death of Member or Limited Member

Death of member or limited member

124  (1) This section applies if a limited member is entitled to a proportionate share of benefits under

(a) a plan in which benefits are determined under a benefit formula provision, or

(b) a supplemental plan

(i) to a local plan, and

(ii) under which survivor benefits are payable.

(2) If a member dies before

(a) the member's pension commences, and

(b) the limited member receives the limited member's proportionate share of the benefits,

the limited member is entitled to receive that proportionate share of benefits to which the limited member would have been entitled had the member not died, which proportionate share is to equal the commuted value of the limited member's proportionate share as calculated on the day before the death of the member.

(3) If a member dies after the limited member receives all of the limited member's proportionate share of benefits under sections 115 [benefits determined under defined benefit formula provision] and 119 [supplemental plans], the limited member is entitled to no further share of the member's benefits except to the extent that the member has designated the limited member as a beneficiary of the benefits.

(4) If a limited member dies before the member, before the member's pension commences and before receiving the limited member's proportionate share of benefits under sections 115 [benefits determined under defined benefit formula provision] and 119 [supplemental plans], the administrator must transfer to the credit of the limited member's estate the proportionate share of the commuted value of the benefits.

(5) Despite the division of benefits under this Part,

(a) if a member's pension is in the form of a joint and survivor pension with a spouse, the spouse is the owner of the survivor benefits, and

(b) a limited member who is a beneficiary of survivor benefits is entitled to all of the survivor benefits, subject to the entitlement, if any, of another limited member.

Entitlement to survivor benefits

125  If benefits are divided under this Part, entitlement to the member's share of the survivor benefits is to be determined in accordance with the law that governs the designation of beneficiaries, or the law that governs if there is no beneficiary designation, as applicable.

Waiving pension or survivor benefits

126  (1) Before an administrator implements the division of benefits under a plan, a limited member or the personal representative of his or her estate may waive the division of benefits by giving notice in accordance with section 136 [notice or waiver].

(2) If a member of a plan dies after pension commencement and his or her spouse is entitled to receive, or is receiving, survivor benefits, a waiver or an order does not affect that entitlement unless

(a) the spouse waives his or her entitlement by giving notice in accordance with section 136, or

(b) the Supreme Court, in allocating all or part of the survivor benefits to a person other than the spouse, refers expressly to this subsection in the order making the allocation.

(3) If a waiver or an order is made in accordance with subsection (2),

(a) the administrator may consent to pay survivor benefits to a person other than the spouse, but is not required to do so, and

(b) if a person becomes entitled to survivor benefits as a result of the waiver or order and receives an overpayment of the survivor benefits, the person is liable to the administrator to repay the overpayment.

Division 5 — Other Matters Respecting Pension Division

Agreements respecting division

127  (1) Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make a written agreement respecting the division of benefits under a plan, including a written agreement doing one or more the following:

(a) determining the spouse's proportionate share of benefits in a manner that would leave the member with less than half, or none, of the member's benefits;

(b) providing for the satisfaction of all or part of the spouse's interest in the benefits by the member providing compensation to the spouse.

(2) An agreement may provide that, despite the Canada Pension Plan, unadjusted pensionable earnings under that Act will not be divided between the spouses.

Determining compensation

128  (1) If, by an agreement or order, a member must provide compensation to a spouse in satisfaction of all or part of the spouse's interest in benefits under a plan, the compensation must be determined in accordance with the regulations unless the agreement or order provides otherwise.

(2) If an administrator and a spouse enter into an agreement under which the spouse accepts from the administrator compensation or a transfer of a share of benefits, in satisfaction of the spouse's interest in any circumstance not specifically dealt with under this Part, the compensation or transfer must be calculated in accordance with the regulations unless the Supreme Court orders otherwise.

Reapportioning benefits

129  The Supreme Court may reapportion to a spouse entitlement to all or part of a member's benefits under a plan for the purpose of providing the spouse with an independent source of income if

(a) it is necessary, appropriate or convenient in the circumstances, and

(b) the financial and property arrangements between the member and spouse to address the spouse's need to become or remain economically independent and self-sufficient would otherwise require an order

(i) respecting spousal support, or

(ii) requiring the member, after pension commencement, to pay the spouse a share of the benefits under the plan, or under another plan, as they are received.

Clarifying division of benefits

130  Despite section 215 (2) [changing, suspending or terminating orders generally], on application by a member or spouse, the Supreme Court may at any time give directions or make orders to facilitate or enforce the division of benefits in accordance with an agreement or order.

Changing division of benefits in unusual circumstances

131  (1) This section applies if the method of dividing benefits under this Part will operate in a manner that is inappropriate given

(a) the terms of the plan, or

(b) any change to the terms of the plan after the date an agreement or order is made to divide the benefits.

(2) Despite section 215 (2) [changing, suspending or terminating orders generally], on application by a member or spouse, the Supreme Court may direct by order an appropriate method of dividing benefits, and the order is binding on the administrator.

(3) An application under this section

(a) may be made at any time before benefits are divided, and

(b) must be served on the administrator at least 30 days before the date set for the hearing of the application.

(4) The administrator may attend and make representations respecting the effect on the plan of any proposed division of benefits under this section.

Retroactive division of benefits

132  (1) In this section, "pension commencement date" means the date chosen by a member, in accordance with the requirements of a plan, to have the member's pension commence.

(2) If commencement of a member's pension is delayed beyond the pension commencement date because the member and the member's spouse, or either of them, are seeking an agreement or order respecting the division of benefits, both the member and the spouse are entitled to receive their respective shares of benefits retroactive to the pension commencement date if all of the following conditions are met:

(a) before the pension commencement date, the member or spouse gives to the administrator a copy of an agreement or order that prohibits the member from dealing with benefits under the plan or with family property generally;

(b) on or before December 1 of the year following the year in which the pension commencement date falls, the member or spouse gives to the administrator a copy of an agreement or order

(i) setting out the final terms of the division of benefits, and

(ii) lifting the prohibition referred to in paragraph (a);

(c) if approval from the Canada Revenue Agency is required to divide the benefits as of the pension commencement date, the administrator, before dividing the benefits, obtains that approval.

(3) For the purposes of subsection (2), the rules respecting the division of benefits before pension commencement, as set out in sections 114 [benefits determined under defined contribution provision], 115 [benefits determined under defined benefit formula provision] and 116 [local hybrid plans], apply.

(4) Nothing in this section limits the discretion of an administrator to consent to, or the jurisdiction of a court to order, the retroactive division of benefits in circumstances other than those set out in subsection (2).

Division 6 — Administrative Matters

Information from plan

133  (1) A spouse who claims to be entitled to benefits and who has given notice under section 136 [notice or waiver] has a right to request and receive, from the administrator, prescribed information respecting the plan

(a) after the notice is given, and

(b) annually afterwards.

(2) Despite subsection (1), the Supreme Court may order that an administrator provide, at any time, some or all of the information required under subsection (1).

(3) An administrator must not disclose prescribed information respecting a member without the member's written consent.

(4) If there is a conflict between this section and a provision of the Freedom of Information and Protection of Privacy Act or the Personal Information Protection Act, this section prevails.

Agreement or order required for division of benefits

134  An administrator may administer the division of a member's benefits under this Part only if the administrator has first received a copy of an agreement or order respecting the division of benefits between the member and the member's spouse.

Information required by plan

135  (1) An administrator is not required to take any action under this Part until the administrator has sufficient information to identify the plan.

(2) If the plan is not identified by name in an agreement or order, information respecting the employment under which a member accrued the benefits is sufficient information to identify the plan.

(3) A person claiming to be entitled to receive a benefit under a plan must prove to the satisfaction of the administrator that the person is entitled to the benefit and, for this purpose, the administrator may require that person to provide evidence to establish the claim.

Notice or waiver

136  If a person is required to give notice or a waiver under this Part, the notice or waiver must be given to the administrator in the prescribed form and manner, if any.

Implementing division of benefits

137  (1) This section applies if an administrator must divide benefits under a local plan.

(2) Subject to section 132 [retroactive division of benefits] and subsection (3) of this section, an administrator is required to divide only those benefits that become payable within the prescribed period after the administrator receives all of the following:

(a) the documents required under section 134 [agreement or order required for division of benefits];

(b) the notice required under Division 2 [Division of Benefits under Local Plans] of this Part;

(c) the information required, if any, under section 135 [information required by plan];

(d) any documents required under any other enactment, or reasonably required by the administrator, to implement the division.

(3) An administrator may delay the division of benefits

(a) if delay is necessary until net investment returns affecting the spouse's share are allocated,

(b) if delay may avoid or reduce transaction costs associated with dividing benefits, or

(c) for any other reason that is reasonably likely to be advantageous to the spouse.

(4) Nothing in this section relieves the administrator from an obligation to pay benefits, or compensation for benefits, that were not paid through the fault of the administrator.

(5) Nothing in this section limits a member's duty to compensate a spouse under Part 5 [Property Division] for the spouse's share of benefits paid to the member before the date the administrator implements the division of benefits.

Adjustment of member's pension

138  If, under this Act, a spouse or the spouse's estate receives a share of a member's benefits directly from the administrator, the administrator must adjust, in accordance with the regulations,

(a) the member's interest in the benefits, or

(b) the interest of any person claiming an interest through the member.

Transfer of commuted value of separate pension or share

139  If a limited member is entitled to a separate pension or a proportionate share of benefits paid under the plan,

(a) the limited member may apply for a transfer of the commuted value of the separate pension or of the proportionate share, as applicable, in the same circumstances that a member may do so under the Pension Benefits Standards Act, in the case of a plan to which that Act applies, or the Pooled Registered Pension Plans Act, in the case of a plan to which that Act applies, and

(b) an administrator may require the limited member to accept a transfer of the commuted value of the separate pension or of the proportionate share, as applicable, in the same circumstances that an administrator may require a member to do so under the Pension Benefits Standards Act, in the case of a plan to which that Act applies, or the Pooled Registered Pension Plans Act, in the case of a plan to which that Act applies.

Administrative costs

140  (1) If the administrator requires a fee to be paid to offset administrative costs incurred in dividing benefits under this Part,

(a) the fee may be no more than the prescribed amount, and

(b) a member and spouse are each responsible for paying the fee.

(2) Unless the parties agree otherwise, a member or spouse who pays more than a half share of a fee under subsection (1) may recover from the other the additional amount paid.

(3) An administrator may deduct a fee under subsection (1) from the payment of benefits.

Income tax

141  (1) A member and spouse are each responsible for paying income tax on his or her own share of divided benefits.

(2) If, under the Income Tax Act (Canada), a member or spouse is required to pay income tax on the other person's share of divided benefits, the person who is required to pay the income tax on the other person's share must be reimbursed by the other person for the amount paid.

(3) An administrator who pays benefits to a spouse under this Part must make, with respect to a deduction required under the Income Tax Act (Canada), separate source deductions for each of the spouse's and member's shares of the benefits.

(4) An agreement or order may require a member to compensate a spouse for the spouse's property interest in benefits paid before the division of benefits is implemented by an administrator on a basis different from that required under subsection (1), if the different basis otherwise complies with applicable law.

Claim does not relieve duty to administer benefits

142  (1) An administrator is not relieved of the duty to administer benefits only because the administrator receives from a spouse a claim to an interest in the benefits.

(2) A claim under subsection (1) includes receipt, without a full application being made under this Part, of a copy of an agreement or order under which the spouse acquires an interest in the benefits or property under Part 5 [Property Division].

Administrator's duties

143  (1) Subsection (2) applies if an administrator

(a) has

(i) been given notice under Division 2 [Division of Benefits under Local Plans] or 3 [Division of Other Benefits] respecting a spouse's claim to an interest in benefits, or

(ii) received an incomplete or otherwise insufficient application for a spouse to become a limited member or to divide benefits, including receiving, without a full application being made, a copy of an agreement or order under which a spouse acquires an interest in benefits, and

(b) is required to administer the benefits.

(2) In a circumstance described in subsection (1), the administrator must not take any action, or omit to take an action, in relation to the benefits unless the administrator first gives notice to the spouse in accordance with the regulations.

(3) Subject to subsection (4), no legal proceeding for damages or other relief lies or may be commenced or maintained against an administrator by or on behalf of a spouse because of anything done or omitted to be done by the administrator if

(a) the thing done or omitted was the subject of the notice given under subsection (2), or

(b) notice is not required under this section for the administrator to do, or omit to do, the thing.

(4) Subsection (3) does not apply to an administrator in relation to anything done or omitted by the administrator in bad faith.

Trust of survivor and pension benefits

144  (1) If a spouse is entitled to a proportionate share of survivor benefits paid to another person, the other person holds them in trust for the spouse.

(2) If a spouse is entitled to a proportionate share of a member's benefits and the spouse's proportionate share is paid to the member or another person, the member or other person holds the spouse's proportionate share in trust for the spouse.

(3) If a person waives, under section 126 [waiving pension or survivor benefits], entitlement to survivor benefits but receives survivor benefits after the waiver takes effect, the person who waived entitlement holds them in trust for the person in whose favour the waiver has been made.

(4) A recipient holding benefits in trust under this section who has information respecting a person's interest in the benefits must immediately pay the benefits to the person.

(5) If a spouse receives benefits in an amount that exceeds the spouse's entitlement, the spouse holds the excess amount in trust for, and must immediately pay the excess amount to, the member or the person who is otherwise entitled to the amount.

No further entitlement after division of benefits

145  (1) This section applies

(a) to benefits regulated under the Pension Benefits Standards Act or the Pooled Registered Pension Plans Act, and

(b) despite any provision to the contrary in the Pension Benefits Standards Act, the Pooled Registered Pension Plans Act or any other Act.

(2) If

(a) a spouse has become a limited member of a plan under this Act or the former Act, or

(b) an agreement or order provides that the benefits are subject to division with a spouse under this Part or under Part 6 of the former Act,

the spouse has no further rights under the Pension Benefits Standards Act or the Pooled Registered Pension Plans Act, as applicable, arising solely from that spouse's status as a spouse, with respect to the member's share of the benefits under that plan, and the member is not required to obtain the consent or waiver of the spouse to make directions with respect to the member's benefits under that plan.

(3) [Repealed 2012-30-155.]

(4) An agreement or order that provides that

(a) a spouse has no share of benefits, or

(b) a spouse's share is satisfied by a means other than by dividing benefits under this Part or under Part 6 of the former Act

is to be treated for the purposes of this section as if the agreement or order provides that the benefits are subject to division under this Part or under Part 6 of the former Act, unless the agreement or order provides otherwise.

(5) In this section, "benefit" includes

(a) a benefit that has been transferred to a locked-in retirement account or a retirement income arrangement, as those terms are defined in the Pension Benefits Standards Act, or

(b) funds that have been transferred under the Pooled Registered Pension Plans Act to a retirement savings plan of the kind prescribed for the purposes of section 50 (1) (b), 50 (3) (b) or 54 (2) (b) of the applied Act, as that term is defined in the Pooled Registered Pension Plans Act, or to a life annuity of the kind prescribed for the purposes of section 50 (1) (c), 50 (3) (c) or 54 (2) (c) of that applied Act.

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14