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B.C. Reg. 348/2012
O.C. 838/2012
Deposited November 26, 2012
effective March 18, 2013

Family Law Act

Division of Pensions Regulation

Note: Check the Cumulative Regulation Bulletin 2015 and 2016
for any non-consolidated amendments to this regulation that may be in effect.

[includes amendments up to B.C. Reg. 70/2015, September 30, 2015]

Link to Point in Time

Contents
Part 1 — Interpretation
1Definitions
2Delivery
3Application of regulation
Part 2 — Requirements for Notice
4Notices and other documents
5Withdrawal of notice
6Change of information
7Administrator must give notice
8Failure of administrator to act on notice
9Administrator must give notice to spouse if member's interest may be affected
Part 3 — Administrator's Duty to Provide Information
10Information to be provided by administrator to spouse who has filed Form P1
11Information to be provided by administrator to limited member
12Authorizing representative
13Confidentiality and non-disclosure of personal information
14Administrator to provide equal rights to spouse
Part 4 — Division of Benefits
15Period for division of benefits under section 137 of Act
16Period for complying with division requirements of Act
17Calculation of proportionate share in relation to pensions, benefits under benefit formula provision, disability benefits and phased retirement benefits
18Application of purchased service and transferred service
19Phased retirement period and recalculation of proportionate share
20Calculation of proportionate share in relation to benefits under defined contribution provision
21Adjustment of member's benefits under benefit formula provision
22Adjustment of member's benefits if divided on death of member
23Calculation of commuted value
24Limited member's separate pension in a local defined benefit plan
25Original agreements and orders
26Transfer from plan to locked in retirement plan
27Calculation of a compensation payment
28Administrative costs
29Transition
FORMS

Part 1 — Interpretation

Definitions

1  (1) In this regulation:

"Act" means the Family Law Act;

"average retirement age", in relation to a plan, means

(a) the average age of retirement for the plan assumed in the most recent actuarial valuation report filed in relation to the plan with the superintendent, or

(b) if a specified age is adopted under section 23 (5), the specified age;

"commencement date" means

(a) the date that, in a section 127 agreement or a Part 6 order, is specified as the date on which the relationship between the member and the spouse began within the meaning of section 3 of the Act, or

(b) if another date is specified in a section 127 agreement or a Part 6 order as the beginning date of the period in relation to which the spouse's proportionate share of the member's benefits is to be calculated under the Act, that specified date;

"entitlement date" means

(a) the date that, in a section 127 agreement or a Part 6 order, is specified as the date on which the spouse became entitled under section 81 (b) of the Act to an interest in the member's benefits under the plan, or

(b) if another date is specified in a section 127 agreement or a Part 6 order as the end date of the period in relation to which the spouse's proportionate share of the member's benefits is to be calculated under the Act, that specified date;

"entitlement period" means the period that begins on the commencement date and ends on the entitlement date;

"former regulation" means the Division of Pensions Regulation, B.C. Reg. 77/95;

"investment returns", in relation to money, means interest earned on, and other gains and losses accrued in relation to, the money, less related investment expenses;

"Part 6 order" means an order of the Supreme Court or of a superior court of another jurisdiction made, or enforceable in British Columbia, under Part 6 of the Act;

"pensionable service", in relation to a member of a plan, means the quantity of time, expressed in terms of months, parts of months or other units of time,

(a) in relation to which the member accrues an entitlement to benefits under the plan, and

(b) that is to be used by the administrator to calculate the benefits;

"section 127 agreement" means an agreement under section 127 of the Act between the member and the spouse, which agreement may be in Form P9;

"superintendent" means the person appointed as the Superintendent of Pensions under section 4 of the Pension Benefits Standards Act, or, if the plan is registered outside of British Columbia, the person in the jurisdiction in which the plan is registered whose role in that jurisdiction is similar to the role of the Superintendent of Pensions in British Columbia.

(2) A reference in this regulation to the spouse includes, if the spouse is a limited member of the plan, a reference to the spouse as limited member, and a reference in this regulation to the limited member is a reference to the spouse in his or her capacity as limited member only.

(3) If the Act applies to an agreement or order made under the former Act, the commencement date and the entitlement date to be used in respect of the agreement or order are

(a) the dates specified under that agreement or order for the same purposes as commencement dates and entitlement dates are specified under this Act, or

(b) if no dates are specified, the dates that were required to be used under the former Act for the same purposes as commencement dates and entitlement dates are used under this Act.

[am. B.C. Reg. 70/2015, s. 1.]

Delivery

2  (1) Without limiting any other means by which a record may be delivered under this regulation, a record may be delivered to a person under this regulation by faxing or emailing the record to a fax address or an email address provided by the person for that purpose.

(2) A record that is mailed or sent by fax or email is effectively delivered under this regulation as follows:

(a) if the record is mailed to the most recent mailing address provided by the intended recipient to the sender;

(b) if the intended recipient provided to the sender a fax address or an email address for the purposes of deliveries under this regulation and the record is faxed or emailed to the most recent fax address or email address provided by the intended recipient for that purpose.

(3) Notice sent by ordinary mail is deemed to have been received 5 days after the date of mailing, and notice sent by fax or email is deemed to have been received on the day on which it was sent.

Application of regulation

3  (1) Subject to subsection (2), this regulation applies to

(a) a member of a plan,

(b) the member's spouse,

(c) if the member's spouse has become a limited member of the plan, the limited member, and

(d) the division, under Part 6 of the Act, of the member's benefits under the plan.

(2) The division referred to in subsection (1) (d) may be modified by

(a) a waiver under section 126 of the Act or a section 127 agreement, or

(b) a Part 6 order.

Part 2 — Requirements for Notice

Notices and other documents

4  (1) For the purposes of section 136 of the Act,

(a) notice referred to in section 133 of the Act must be given in Form P1 (Claim and Request for Information and Notice),

(b) notice referred to in section 112 (5), 113 (2), 114 (2) (b), 116 (2) as that section relates to a benefit formula provision, 117 (2), 119 (2), 121 (2) or 122 (2) of the Act must be given in Form P2 (Request for Designation as Limited Member),

(c) notice referred to in section 114 (2) (a) of the Act, or in section 116 (2) of the Act as that section relates to a defined contribution account, must be given in Form P3 (Request for Transfer from Defined Contribution Account),

(d) notice referred to in section 115 (2) of the Act must be given in Form P4 (Request by Limited Member for Transfer or Separate Pension),

(e) the waiver referred to in section 126 (2) (a) of the Act must be given in Form P5 (Waiver of Survivor Benefits after Pension Commencement), and

(f) the waiver referred to in section 126 (1) of the Act must be given in Form P7 (Withdrawal of Notice/Waiver of Claim).

(2) A notice or other document delivered under the Act, including under this regulation,

(a) is not defective or ineffective,

(b) is not incomplete, and

(c) does not fail to provide sufficient information

merely because it omits information referred to in section 13 (1) (a) or (b) or the information referred to in section 13 (1) (a) or (b) that is contained in the document is incomplete or incorrect.

[am. B.C. Reg. 70/2015, s. 2.]

Withdrawal of notice

5  (1) A person may, in accordance with subsection (2) of this section, withdraw a notice delivered to the administrator under section 4 of this regulation as follows:

(a) in the case of a notice in Form P1, at any time;

(b) in the case of any other notice, at any time before the spouse's proportionate share of the benefits to which the notice relates

(i) is transferred to the spouse,

(ii) is converted into a separate pension, or

(iii) becomes a separate defined contribution account in the plan for the spouse.

(2) To withdraw one or more notices and other documents, a person must deliver to the administrator a notice in Form P7.

(3) If a notice or document is withdrawn under this section, the entitlement of the member and the spouse or their estates to the benefits must be calculated as if the notices and documents withdrawn under subsection (2) had never been delivered to the administrator.

(4) Despite subsections (1) and (2), a Form P7 must not be used to withdraw a Form P5 or a Form P7.

Change of information

6  If personal information contained in a notice delivered under section 4 changes, the person who gave that notice must deliver to the administrator a document that provides notice of that change, which document may be in Form P8 (Change of Information).

Administrator must give notice

7  (1) Within 30 days after receiving a document referred to in section 4 or 5, the administrator must advise the member of the administrator's receipt of that document by delivering to the member a notice in Form P6 (Administrator/Annuity Issuer Response).

(2) Without limiting subsection (1), if the administrator cannot act on a document delivered under section 4 or 5 because the document is incomplete or otherwise fails to provide sufficient information, the administrator must, within 30 days after receipt of that document, deliver a notice in Form P6 to the member and the spouse indicating one or both of the following:

(a) why the administrator cannot act on the document;

(b) what must be provided before the administrator can act on the document.

Failure of administrator to act on notice

8  (1) If a document referred to in section 4 or 5 is delivered to the administrator, the member or the spouse may apply to the Supreme Court for an order referred to in subsection (2) of this section if

(a) the administrator does not, within 30 days after receipt of the document, do one of the following:

(i) give, or give effect to, the benefits, entitlements or other rights that under the Act ought to follow on the receipt of such document;

(ii) provide a notice under section 7 (2) to explain why the administrator has not acted on the document, or

(b) the administrator provides a notice in accordance with section 7 (2) but the applicant disputes the reasons given by the administrator in that notice as to why the administrator has not acted on the document.

(2) On an application referred to in subsection (1), the Supreme Court may make one or more of the following orders:

(a) an order requiring compliance with the Act;

(b) any other order the court may make under the Act respecting the division of the benefits between the member and the spouse.

(3) The administrator is a party to the proceedings in which the application referred to in subsection (1) is brought.

Administrator must give notice to spouse if member's interest may be affected

9  (1) If the spouse is entitled to information under section 133 of the Act or to notice under section 143 of the Act or is otherwise entitled to information or notice as a limited member, the administrator must deliver to the spouse written notice of any action that the administrator intends to take as a result of any of the following:

(a) the death of the member;

(b) any direction given to the administrator by the member with respect to the benefits, including an election by the member to have his or her pension commence and a change in a beneficiary designation.

(2) If a direction referred to in subsection (1) (b) is a change in a beneficiary designation, the administrator must advise the spouse whether the spouse will become or will cease to be a beneficiary as a result of that direction.

(3) Notice under subsection (1) must be given in Form P6.

(4) The administrator must deliver the notice required under subsection (1) to the spouse at least 30 days before the date on which the administrator's intended action is taken.

(5) Nothing in this section changes or otherwise affects the effective date of

(a) rights arising on the death of the member, or

(b) a direction referred to in subsection (1) (b).

(6) Neither the effective date of the member's direction nor the death of the member

(a) prejudices rights the spouse may have or acquire under the Family Law Act, or otherwise, before or within the notice period referred to in subsection (4), or

(b) prevents a court from granting an order restraining any action that is to be, or may be, taken as a result of any matter referred to in paragraph (a) or (b) of subsection (1).

Part 3 — Administrator's Duty to Provide Information

Information to be provided by administrator to spouse who has filed Form P1

10  (1) Subject to subsection (3) and section 13, if the spouse has delivered to the administrator a notice in Form P1, the administrator must, within 60 days after receiving a written request for information under section 133 of the Act from the spouse, deliver the following information to the spouse:

(a) a copy of the most recent annual statement provided to the member, or, if no annual statement is available, the same information that, under the Pension Benefits Standards Act, was to have been contained in the member's annual statement;

(b) any additional information that is necessary to value the benefits of the member or to finalize the division of the benefits under the Act;

(c) information as to whether or not the spouse is the beneficiary of the member's benefits;

(d) if the member is receiving a pension, whether benefits are payable on the death of the member and, if so,

(i) information about those benefits,

(ii) whether the spouse is entitled to any of those benefits, and

(iii) confirmation whether a change of spousal status affects entitlement to those benefits;

(e) if benefits are based on the member's income for any period, information as to the member's income for that period;

(f) any information or notice that had been provided to the member after the Form P1 was filed;

(g) if benefits are transferred to the plan by or on behalf of the member after the Form P1 was filed, or within 2 years before it was filed, information about what has been transferred;

(h) if benefits are transferred from the plan by or on behalf of the member after the Form P1 was filed, or within 2 years before it was filed, information about what has been transferred and to where it was transferred;

(i) to the extent that it is not provided under paragraphs (a) to (h),

(i) information on options available to and elections that may be made by the member with respect to receiving the benefits, and

(ii) information on options available to and elections that may be made by a limited member with respect to receiving the benefits.

(2) Subject to subsection (3) and section 13, if the spouse delivers to the administrator a written request for an update of the information provided to the spouse under subsection (1) of this section, the administrator must deliver that update within 30 days after receiving that request.

(3) Unless the Supreme Court otherwise orders under section 133 (2) of the Act, the administrator need not deliver to the spouse information under subsection (1) more than once in each calendar year and need not provide to the spouse an update under subsection (2) of this section more than once in each calendar year.

Information to be provided by administrator to limited member

11  (1) Subject to subsection (2), after the spouse becomes a limited member of a plan, section 10 no longer applies to the limited member and at least once in each calendar year, the administrator must provide the following information to the limited member:

(a) any information or notice available to members of the plan;

(b) to the extent that it is not provided under paragraph (a), information on options available to and elections that may be made by the member with respect to the benefits;

(c) to the extent that it is not provided under paragraph (a), information on options available to and elections that may be made by a limited member with respect to the benefits;

(d) confirmation of whether the limited member is the beneficiary of the member's benefits.

(2) After the limited member is in receipt of a separate pension or begins to have his or her proportionate share of the benefits administered in a defined contribution account for the limited member in the plan under section 114 (2) (b) of the Act, the only information the limited member is entitled to receive from the administrator is information relating to the separate pension or the limited member's defined contribution account.

Authorizing representative

12  (1) A person entitled to receive information under section 10 or 11 of this regulation may, in writing, authorize a representative to request and receive from the administrator information that the person is entitled to receive under this regulation, and, subject to section 13 and subsection (2) of this section, the administrator must, after receiving such a request, provide that information to both the person and the representative.

(2) An authorization referred to in subsection (1) ceases on the earliest of

(a) the date, if any, specified in the authorization,

(b) if no date is specified in the authorization, the date that is one year after the date of the authorization,

(c) the date on which the administrator receives a written revocation of the authorization from the person who issued it, and

(d) the date on which the administrator receives a written revocation of the authorization from the representative,

and on and after that date, the administrator must cease providing to the representative any of the information that the person is entitled to receive under this regulation until a further authorization is provided.

Confidentiality and non-disclosure of personal information

13  (1) When providing information under this regulation, the administrator must not, unless the member consents in writing, provide the spouse with

(a) the member's address, fax number, email address, telephone number or marital status, or

(b) the identity of any beneficiary designated by the member other than the spouse.

(2) Without limiting subsection (1), the administrator must edit any information provided by the administrator to the spouse to remove any of the information that the administrator is, under subsection (1), restricted from providing to the spouse.

(3) An administrator acting in good faith who accidentally discloses any information listed in subsection (1) is not liable to the member or any other person to pay damages arising from the disclosure.

(4) A person who receives any documents or information from an administrator under this regulation must keep the information in confidence and, without limiting this obligation, must not disclose the documents or information to anyone other than

(a) for the purposes of dividing benefits under Part 6 of the Act, or determining compensation for those benefits, or

(b) in the course of permitting the documents to be introduced into evidence in proceedings involving the benefits.

[am. B.C. Reg. 70/2015, s. 3.]

Administrator to provide equal rights to spouse

14  If, under the plan text document of the plan, a member may, with the consent of the administrator, have his or her benefits valued, calculated or provided in a particular way or exercise or obtain certain rights in relation to the member's benefits, the limited member may also seek that consent in relation to his or her proportionate share of those benefits and the administrator must not withhold consent in response to the limited member's request for that consent unless consent would have been withheld had the member applied for that consent.

Part 4 — Division of Benefits

Period for division of benefits under section 137 of Act

15  The benefits that the administrator is, under section 137 of the Act, required to divide are, with reference to a pension that has commenced other than by withdrawals from a defined contribution account, or with reference to disability benefits under section 122 of the Act, those benefits that become payable within the period that

(a) begins on the 30th day to follow the date on which the administrator has received

(i) all of the documents referred to in section 137 (2) of the Act, and

(ii) the payment of the fee permitted under section 28 of this regulation, if required by the administrator, and

(b) ends on the earlier of the termination of the pension or disability benefits, as the case may be, and the death of the limited member.

Period for complying with division requirements of Act

16  Within 60 days after the date on which the administrator has received all of the documents referred to in section 137 (2) of the Act and the payment of the fee permitted under section 28 of this regulation, if required by the administrator,

(a) if the spouse has filed a Form P2, the administrator must register the spouse as a limited member and deliver to the limited member and the member a notice in Form P6 confirming that registration,

(b) if the spouse has filed a Form P3 in which the spouse requested to have his or her proportionate share of the member's defined contribution account transferred from the plan to the credit of the spouse, the administrator must effect that transfer,

(c) if the limited member has filed a Form P4 in which he or she elected to receive his or her proportionate share of the benefits by a separate pension, the limited member's separate pension must commence, or

(d) if the limited member has filed a Form P4 in which he or she elected 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, the administrator must effect that transfer.

[am. B.C. Reg. 70/2015, s. 4.]

Calculation of proportionate share in relation to pensions, benefits under benefit formula provision, disability benefits and phased retirement benefits

17  (1) If it is necessary, under the Act, including under this regulation, to calculate a proportionate share of the following:

(a) payments under a pension that has commenced or the commuted value of those payments;

(b) benefits under a benefit formula provision before pension commencement or the commuted value of those benefits;

(c) disability benefits under a plan;

(d) annuity payments;

(e) phased retirement benefits;

this section applies to that calculation.

(2) The formula set out in subsection (3) applies to the calculation referred to in subsection (1) unless a section 127 agreement, a Part 6 order or an original agreement or order referred to in section 25 (1) of this regulation

(a) supplants that formula, in which case the formula provided for in the agreement or order applies to the calculation, or

(b) modifies that formula, in which case the formula as modified by the agreement or order applies to the calculation.

(3) Subject to sections 18 and 19, the proportionate share referred to in subsection (1) of this section must be calculated in accordance with the following formula:

proportionate share = 1/2 (pensionable service during entitlement period ÷ total pensionable service)

where

"pensionable service during entitlement period" means the pensionable service accumulated under the plan by the member in the entitlement period;

"total pensionable service" means the pensionable service accumulated by the member to the earliest of

(a) the date that the limited member's share is transferred from the plan,

(b) the beginning of the month in which the limited member begins to receive a separate pension,

(c) the beginning of the month in which the limited member begins to receive a payment of benefits from the member or the administrator, and

(d) the day immediately preceding the day of the member's death.

[am. B.C. Reg. 70/2015, s. 5.]

Application of purchased service and transferred service

18  For the purposes of accounting in section 17 for purchased service and transferred service, "pensionable service during entitlement period"

(a) includes

(i) all pensionable service, regardless of the period to which it is allocated, that was purchased by or on behalf of the member during the entitlement period, and

(ii) all pensionable service, regardless of the period to which it is allocated, that was accumulated under another plan during the entitlement period and transferred to the member's plan, and

(b) does not include pensionable service purchased by or on behalf of the member, or accumulated under another plan, before or after the entitlement period.

Phased retirement period and recalculation of proportionate share

19  If the member accumulates additional pensionable service after the calculation of the limited member's proportionate share of a phased retirement benefit under section 115 (5) of the Act or the calculation of the spouse's proportionate share of benefits payable under section 117 (2) of the Act, the proportionate share must, whenever any of the following occurs, be recalculated to take into account the additional pensionable service accumulated by the member:

(a) the spouse is to receive

(i) a proportionate share of the commuted value of the benefits under section 115 (2) (b) of the Act,

(ii) a separate pension, or

(iii) a share of benefits under section 124 (2) of the Act on the death of the member;

(b) the spouse's estate is to receive a proportionate share of the commuted value of the benefits under section 124 (4) of the Act;

(c) payment of the member's pension resumes.

[am. B.C. Reg. 70/2015, s. 6.]

Calculation of proportionate share in relation to benefits under defined contribution provision

20  (1) If it is necessary, under the Act, including under this regulation, to calculate a proportionate share of the member's defined contribution account, this section applies to that calculation.

(2) The formula set out in subsection (3) applies to the calculation referred to in subsection (1) unless a section 127 agreement, a Part 6 order or an original agreement or order referred to in section 25 (1) of this regulation

(a) supplants that formula, in which case the formula provided for in the agreement or order applies to the calculation, or

(b) modifies that formula, in which case the formula as modified by the agreement or order applies to the calculation.

(3) The proportionate share referred to in subsection (1) must be calculated in accordance with the following formula:

transfer amount = 1/2 (account balance - pre-relationship contributions)

where

"account balance" means the total of

(a) the defined contribution account, before division, as at the entitlement date, and

(b) the investment returns earned on the amount referred to in paragraph (a) after the entitlement date up to and including the date on which the spouse's proportionate share of the defined contribution account is transferred from the plan to the credit of the spouse or used to establish a defined contribution account in the plan for the spouse;

"pre-relationship contributions" means the total of

(a) the defined contribution account as at the commencement date, and

(b) the investment returns earned on the amount referred to in paragraph (a) after the commencement date up to and including the date on which the spouse's proportionate share of the defined contribution account is transferred from the plan to the credit of the spouse or used to establish a defined contribution account in the plan for the spouse.

Adjustment of member's benefits under benefit formula provision

21  (1) This section applies if the member's benefits under a benefit formula provision are divided under Part 6 of the Act.

(2) The administrator must, in accordance with subsection (3), adjust the benefits to which the member is entitled and the basis on which they are calculated if

(a) the division referred to in subsection (1) occurs before the member's pension commences, and

(b) the limited member or the limited member's estate has received

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

(ii) a transfer of the limited member's proportionate share of the commuted value of the benefits.

(3) For the purposes of subsection (2), if the member's benefits have vested, the member's pensionable service must be reduced by the amount of pensionable service reflected in the limited member's proportionate share of the benefits.

(4) As an example of the application of subsection (3), if the proportionate share of the benefits to which a limited member is entitled is calculated under section 17 and the member's benefits have vested, the member's pensionable service is to be reduced by one-half of the pensionable service that, in section 17, constitutes the "pensionable service during entitlement period".

(5) A reduction of pensionable service under subsection (3) of this section

(a) is only for the purpose of adjusting

(i) the portion of the benefits that the member is entitled to receive after the division referred to in subsection (1), or

(ii) if the member is deceased, the amount of survivor benefits, if any, and

(b) is not to be taken into account in any determination of eligibility for those benefits under the plan.

[am. B.C. Reg. 70/2015, s. 7.]

Adjustment of member's benefits if divided on death of member

22  In a situation referred to in section 124 (2) of the Act,

(a) the member's benefits must be adjusted, to reflect that division, in accordance with section 21 of this regulation, and

(b) any survivor benefits payable under the plan must be calculated on the adjusted amount referred to in paragraph (a) of this section.

Calculation of commuted value

23  (1) In this section, "valuation date", in relation to a matter referred to in subsection (3) (a), (b), (c), (d) or (e), means the date that, under subsection (3), applies to that matter.

(2) This section applies if

(a) the limited member is entitled under Part 6 of the Act to a proportionate share of the benefits under a benefit formula provision, and

(b) it is necessary, under the Act, including under this regulation, to calculate the commuted value of the benefits.

(3) The commuted value of the benefits referred to in subsection (2) (b) must

(a) when calculating the separate pension payable to the limited member for the purposes of section 115 (2) (a), 119 (3) (c) or 121 (3) of the Act, be calculated as at a date not earlier than the end of the month immediately preceding the commencement date of the separate pension,

(b) when calculating the amount to be transferred to the limited member for the purposes of section 115 (2) (b) or (6) of the Act, be calculated as at a date not earlier than the end of the month immediately preceding the date of the transfer,

(c) when calculating the commuted value of the benefits for the purposes of section 124 (2) of the Act, be calculated as at a date not earlier than the end of the month immediately preceding the day before the death of the member,

(d) when calculating the amount payable to the estate of the limited member for the purposes of section 124 (4) of the Act, be calculated as at a date not earlier than the end of the month immediately preceding the date of the limited member's death, and

(e) when calculating the amount required by the administrator to be transferred for the purposes of section 139 (b) of the Act, be calculated as at a date not earlier than the end of the month immediately preceding the date on which the administrator notifies the limited member that the transfer is required.

(4) Subject to subsection (5) of this section, the limited member's proportionate share of the commuted value of benefits must be calculated as follows:

(a) the commuted value of the pension the member would have received must be calculated as if

(i) there had been no division under the Act,

(ii) the member's pension had been calculated by reference only to the benefits accrued to the valuation date, and

(iii) the member had elected a pension in the unadjusted normal form, applicable to the member, provided under the plan commencing at the later of

(A) the valuation date, and

(B) the date the member would reach the average retirement age for the plan;

(b) after that, the limited member's proportionate share of the amount referred to in paragraph (a) must be calculated.

(5) For the purposes of subsection (4) (a) (iii) (B), the administrator may elect, as the average retirement age for the plan, a specific age that is younger than the actual average retirement age for the plan, and if that election is made, the administrator must not change the average retirement age for the plan without first applying for and obtaining the written consent of the superintendent.

[am. B.C. Reg. 70/2015, s. 8.]

Limited member's separate pension in a local defined benefit plan

24  (1) If the limited member is entitled to receive a separate pension,

(a) the separate pension must be calculated on the basis of his or her proportionate share of the commuted value of the benefits as calculated under section 23, and

(b) the separate pension must be provided in one of the following forms as elected by the limited member:

(i) in the form of a pension payable for the limited member's lifetime only;

(ii) in any other form of pension, or any combination of forms of pension, that members of the plan may elect to receive

adjusted in accordance with actuarial principles.

(2) If, in a situation referred to in section 124 (2) of the Act, the member was eligible at the date of his or her death to have his or her pension commence, the limited member may elect to receive the limited member's proportionate share of the commuted value of the benefits by a separate pension.

Original agreements and orders

25  (1) If, in a situation referred to in section 112 (2) of the Act, the member and the spouse agree under section 112 (3) (a) (i), or are deemed to agree under section 112 (5), to divide benefits in accordance with Part 6 of the Act, the following applies unless the member and spouse otherwise agree:

(a) despite paragraph (b) of this subsection and subject to section 131 of the Act and to subsection (2) of this section, the spouse's proportionate share of the benefits is calculated by the share or formula set out in the original agreement or order;

(b) provisions of the original agreement or order that are inconsistent with division of benefits under Part 6 of the Act cease to have effect;

(c) provisions of the original agreement or order that clarify, supplement or are collateral to division of benefits under Part 6 of the Act continue in effect.

(2) If subsection (1) applies and the benefits referred to in subsection (1) are in a defined contribution account, the spouse's share of those benefits is calculated in accordance with section 20 of this regulation, using the commencement date and entitlement date specified in the original agreement or order.

Transfer from plan to locked in retirement plan

26  If the Act requires or authorizes an administrator of a plan to transfer from the plan an amount to the credit of the spouse, the transfer must be made in accordance with the provisions of the Pension Benefits Standards Act, and any regulations under that Act, that would have applied had the transfer been made to the credit of the member.

[am. B.C. Reg. 70/2015, s. 9.]

Calculation of a compensation payment

27  (1) This section applies if provision is made for satisfaction of the spouse's interest in benefits by any of the following:

(a) a compensation payment under section 97 (2) (c) of the Act;

(b) a compensation payment under section 127 (1) (b) of the Act;

(c) a compensation payment or amount transferred under section 128 (2) of the Act.

(2) A compensation payment or transfer referred to in subsection (1) must be equal to the spouse's proportionate share of the commuted value of the future benefits payable to the member.

(3) Without limiting the contingencies that may be considered in calculating the amount of a compensation payment or transfer referred to in subsection (1), the calculation must make reasonable provision for the following contingencies:

(a) the possibility that the member may terminate employment or die before commencement of the member's pension;

(b) the possibility that the member's pension commences earlier or later than the date at which the member is entitled, under the plan text document, to begin receiving a pension without reduction or increase to the pension;

(c) the possibility that benefits being divided and paid under the plan will increase in value, whether by an automatic formula or on an ad hoc basis, after the date of the calculation of the compensation payment or transfer;

(d) to the extent that benefits being divided are related to future salary levels, the possibility that salary levels will increase after the date of the calculation of the compensation payment or transfer.

(4) If an entitlement to receive a pension has not vested in the member at the date of valuation, the spouse may elect to

(a) postpone valuation until it is ascertained whether the entitlement vests, or

(b) have the valuation proceed assuming the entitlement will vest, but adjusting it to take into account the contingency that the member may die or leave employment before vesting.

[am. B.C. Reg. 70/2015, s. 10.]

Administrative costs

28  The amount to be paid to the administrator by the member and the spouse under section 140 of the Act must not exceed the following:

(a) for registering the spouse as a limited member of the plan, $750;

(b) for transferring a proportionate share of the member's defined contribution account to the credit of the spouse under section 114 (2) (a) of the Act, $175.

Transition

29  (1) In this section, "limited member" has the same meaning as in section 70 of the former Act.

(2) If, before March 18, 2013, the administrator received written notice from a limited member seeking to have the limited member's proportionate share of the commuted value of benefits transferred from a plan to the credit of the limited member or seeking to receive the limited member's proportionate share of benefits by a separate pension, the former Act and the former regulation apply to the calculation of the limited member's proportionate share of the commuted value.

(3) If, before March 18, 2013, the administrator delivered written notice to a limited member setting out options as to how the limited member's proportionate share of benefits could be provided to the limited member, the following applies:

(a) the limited member may, after March 18, 2013, in accordance with paragraph (b), elect one of those options;

(b) to make an election under paragraph (a), the limited member must, within the period referred to in the notice, or, if no period is referred to in the notice, within 60 days after the date of the notice, deliver to the administrator a notice in Form P4 within which the limited member elects one of the options referred to in the administrator's notice;

(c) if the limited member makes an election in accordance with paragraph (b), the limited member is entitled to receive his or her share of benefits in accordance with that election and the former Act and the former regulation applies;

(d) if the limited member does not make an election in accordance with paragraphs (a) and (b), the Act applies.

FORMS

[am. B.C. Reg. 70/2015, s. 11.]

Form P1

Form P2

Form P3

Form P4

Form P5

Form P6

Form P7

Form P8

Form P9

[Provisions relevant to the enactment of this regulation: Family Law Act, S.B.C. 2011, c. 25, sections 246 and 248.]