An Act to amend the Judges Act and certain other Acts in relation to courts (S.C. 2006, c. 11)
Full Document:
Assented to 2006-12-14
Marginal note:R.S., c. 16 (3rd Supp.), s. 3; 2002, c. 8, s. 87(1)
7. Subsections 28(1) and (2) of the Act are replaced by the following:
Marginal note:Federal Courts and Tax Court
28. (1) If a judge of the Federal Court of Appeal, the Federal Court or the Tax Court of Canada notifies the Minister of Justice of Canada of his or her election to give up regular judicial duties and hold office only as a supernumerary judge, the judge shall hold the office of supernumerary judge of that Court from the time notice is given until he or she reaches the age of retirement, resigns or is removed from or otherwise ceases to hold office, or until the expiry of 10 years from the date of the election, whichever occurs earlier, and shall be paid the salary annexed to that office.
Marginal note:Restriction on election
(2) An election may be made under subsection (1) only by a judge
(a) who has continued in judicial office for at least 15 years and whose combined age and number of years in judicial office is not less than 80; or
(b) who has attained the age of 70 years and has continued in judicial office for at least 10 years.
Marginal note:2002, c. 8, s. 88(1)(E)
8. Subsections 29(1) and (2) of the Act are replaced by the following:
Marginal note:Provincial superior courts
29. (1) If the legislature of a province has enacted legislation establishing for each office of judge of a superior court of the province the additional office of supernumerary judge of the court, and a judge of that court notifies the Minister of Justice of Canada and the attorney general of the province of the judge’s election to give up regular judicial duties and hold office only as a supernumerary judge, the judge shall hold the office of supernumerary judge from the time notice is given until he or she reaches the age of retirement, resigns or is removed from or otherwise ceases to hold office, or until the expiry of 10 years from the date of the election, whichever occurs earlier, and shall be paid the salary annexed to that office.
Marginal note:Conditions
(2) An election under subsection (1) may only be made by a judge
(a) who has continued in judicial office for at least 15 years and whose combined age and number of years in judicial office is not less than 80; or
(b) who has attained the age of 70 years and has continued in judicial office for at least 10 years.
Marginal note:2002, c. 7, s. 193(1)
9. (1) Paragraph 40(1)(c) of the Act is replaced by the following:
(c) a judge of the Supreme Court of Yukon, the Supreme Court of the Northwest Terri- tories or the Nunavut Court of Justice who moves to a place of residence in one of the ten provinces or in another territory during the period of two years
(i) beginning two years before the judge’s date of eligibility to retire, or
(ii) if no removal allowance is paid in respect of a move made during the period described in subparagraph (i), beginning on the judge’s date of retirement or resignation from office;
Marginal note:2002, c. 8, s. 93(2)
(2) Paragraph 40(1)(e) of the Act is replaced by the following:
(e) a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada who moves to a place of residence in Canada outside the area within which the judge was required to reside by the Act establishing that Court, during the period of two years
(i) beginning two years before the judge’s date of eligibility to retire, or
(ii) if no removal allowance is paid in respect of a move made during the period described in subparagraph (i), beginning on the judge’s date of retirement or resignation from office; and
(3) Section 40 of the Act is amended by adding the following after subsection (2):
Marginal note:Expenses of spouse or common-law partner
(2.1) Where a removal allowance is payable to a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada under paragraph (1)(a), an employment assistance allowance shall be paid to the judge’s spouse or common-law partner up to a maximum of $5,000 for expenses actually incurred by the spouse or common-law partner in pursuing employment in the judge’s new place of residence.
Marginal note:2001, c. 7, s. 20
10. Paragraph 41.1(2)(c) of the Act is replaced by the following:
(c) the representational allowance referred to in subsection 27(6) for the period, as though the appropriate maximum referred to in that subsection were an amount that bears the same ratio to that allowance that the number of months in the period bears to twelve.
Marginal note:1998, c. 30, s. 7(2); 2002, c. 8, s. 95(1)(E)
11. (1) Paragraph 42(1)(e) of the Act is replaced by the following:
(e) a judge of the Supreme Court of Canada who has continued in judicial office on that Court for at least 10 years and resigns from office,
Marginal note:2002, c. 8, par. 111(a)(E)
(2) Subsection 42(3) of the French version of the Act is replaced by the following:
Marginal note:Durée des pensions
(3) Le juge touche la pension à compter de la date à laquelle il cesse d’occuper son poste, et ce, jusqu’à son décès.
Marginal note:2001, c. 7, s. 21
12. Subsection 43.1(2) of the Act is replaced by the following:
Marginal note:Calculation of amount of deferred annuity
(2) The amount of the deferred annuity shall be two thirds of the amount of the salary annexed to the judge’s office at the time of the election multiplied by a fraction of which
(a) the numerator is the number of years, to the nearest one tenth of a year, during which the judge has continued in judicial office, and
(b) the denominator is the number of years, to the nearest one tenth of a year, during which the judge would have been required to continue in judicial office in order to be eligible to be granted an annuity under paragraph 42(1)(a) or (d).
Marginal note:2000, c. 12, par. 169(a)
13. Subsection 44(2) of the Act is replaced by the following:
Marginal note:Where judge receiving annuity
(2) Subject to this section, where a judge who, before, on or after July 11, 1955, was granted a pension or annuity under this Act or any other Act of Parliament providing for the grant of pensions or annuities to judges died or dies after July 10, 1955, the Governor in Council shall grant to the survivor of the judge
(a) an annuity equal to one half of the pension or annuity granted to the judge, commencing on July 18, 1983 or immediately after the death of the judge, whichever is later, and continuing during the life of the survivor; or
(b) if a division of the judge’s annuity benefits has been made under section 52.14, an annuity equal to one half of the annuity that would have been granted to the judge had the annuity benefits not been divided, commencing immediately after the death of the judge and continuing during the life of the survivor.
Marginal note:2002, c. 8, s. 99
14. Subsection 50(2.1) of the Act is replaced by the following:
Marginal note:Adjustment of contributions
(2.1) A supernumerary judge, a judge who continues in judicial office after having been in judicial office for at least 15 years and whose combined age and number of years in judicial office is not less than 80, a judge of the Supreme Court of Canada who has continued in judicial office on that Court for at least 10 years, or a judge referred to in section 41.1 is not required to contribute under subsections (1) and (2) but is required to contribute, by reservation from salary, to the Supplementary Retirement Benefits Account at a rate of one per cent of his or her salary.
15. The Act is amended by adding the following after section 52:
Division of Judge’s Annuity Benefits on Conjugal Breakdown
Marginal note:Definitions
52.1 The following definitions apply in this section and in sections 52.11 to 52.22.
“agreement”
« accord »
“agreement” means an agreement referred to in subparagraph 52.11(2)(b)(ii).
“annuity”
« pension »
“annuity” means an annuity payable under section 42, 43 or 43.1.
“annuity benefit”
« prestation de pension »
“annuity benefit” means an annuity or a return of contributions payable under section 51, and includes amounts payable to a judge under the Supplementary Retirement Benefits Act.
“application”
« demande »
“application” means an application made under subsection 52.11(1).
“court order”
« ordonnance »
“court order” means an order referred to in paragraph 52.11(2)(a) or subparagraph 52.11(2)(b)(i).
“interested party”
« intéressé »
“interested party”, in relation to an application for division of a judge’s annuity benefits, means the judge or the spouse, former spouse or former common-law partner with whom those benefits would be divided under the application.
“judge”
« juge »
“judge” includes a former judge who has been granted an annuity.
“Minister”
« ministre »
“Minister” means the Minister of Justice of Canada.
“prescribed”
Marginal note:Version anglaise seulement
“prescribed” means prescribed by regulation.
“spouse”
« époux »
“spouse”, in relation to a judge, includes a person who is a party to a void marriage with the judge.
Marginal note:Application for division
52.11 (1) A judge or a spouse, former spouse or former common-law partner of a judge may, in the circumstances described in subsection (2), apply in accordance with the regulations for the division of the judge’s annuity benefits between the judge and the spouse, former spouse or former common-law partner.
Marginal note:When application may be made
(2) An application may be made under the following circumstances:
(a) where a court of competent jurisdiction in Canada, in proceedings in relation to divorce, annulment of marriage or separation, has made an order that provides for the annuity benefits to be divided between the interested parties; or
(b) where the interested parties have been living separate and apart for a period of one year or more and, either before or after they began to live separate and apart,
(i) a court of competent jurisdiction in Canada has made an order that provides for the annuity benefits to be divided between them, or
(ii) the interested parties have entered into a written agreement that provides for the annuity benefits to be divided between them.
Marginal note:Notice to interested parties
(3) The Minister shall send to each interested party in accordance with the regulations a notice of the receipt of an application.
Marginal note:Objections by interested parties
52.12 (1) An interested party who objects to the division of annuity benefits on any of the grounds described in subsection (2) may submit a notice of objection in writing in accordance with the regulations within 90 days after the day on which notice of the receipt of the application is sent to the interested party under subsection 52.11(3).
Marginal note:Grounds for objection
(2) The grounds for objection are as follows:
(a) the court order or agreement on which the application is based has been varied or is of no force or effect;
(b) the terms of the court order or agreement have been or are being satisfied by other means; or
(c) proceedings have been commenced in a court of competent jurisdiction in Canada to appeal or review the court order or challenge the terms of the agreement.
Marginal note:Documentary evidence
(3) An interested party who submits a notice of objection shall include with that notice documentary evidence to establish the grounds for objection.
Marginal note:Approval of division
52.13 (1) Subject to subsections (2) and (3), the Minister shall, as soon as is practicable after the Minister is satisfied that an application meets the requirements of this Act, approve the division of annuity benefits in respect of which the application is made.
Marginal note:When decision to be deferred
(2) When an interested party submits a notice of objection in accordance with section 52.12, the Minister shall
(a) if the objection is made on the grounds referred to in paragraph 52.12(2)(a) or (b), defer a decision on the application until the Minister is able to ascertain to his or her satisfaction whether those grounds have been established; and
(b) if the objection is made on the grounds referred to in paragraph 52.12(2)(c), defer a decision on the application until the final disposition of the proceedings on which those grounds are based.
Marginal note:Refusal of division
(3) The Minister shall refuse to approve the division of annuity benefits if
(a) the application is withdrawn in accordance with the regulations;
(b) a notice of objection has been submitted on grounds referred to in paragraph 52.12(2)(a) or (b) and the Minister is satisfied that those grounds have been established and constitute sufficient reason to refuse the division;
(c) a notice of objection has been submitted on grounds referred to in paragraph 52.12(2)(c) and the court order or agreement is of no force or effect as a result of the proceedings referred to in that paragraph;
(d) the period of cohabitation of the judge and the spouse, former spouse or former common-law partner cannot be determined under subsection 52.14(6); or
(e) the Minister is satisfied, based on evidence submitted by any person, that it would not be just to approve the division.
Marginal note:Exception
(4) Notwithstanding subsection (3), the Minister may approve the division of annuity benefits on the basis of an order of a court issued pursuant to any proceedings referred to in paragraph 52.12(2)(c).
Marginal note:Transitional
(5) The Minister may approve the division of the annuity benefits even though the court order or agreement on which the application is based was made or entered into before the day on which subsection 52.11(1) comes into force.
Marginal note:Division of annuity benefits
52.14 (1) Subject to subsections (3) and (3.1), where the Minister approves the division of the annuity benefits of a judge, the spouse, former spouse or former common-law partner shall be accorded a share of the annuity benefits consisting of
(a) an amount representing 50% of a proportion, determined in accordance with subsection (2), of the value of the annuity that is attributed, in accordance with the regulations, to the period subject to division; or
(b) if the terms of the court order or agreement on which the application for division is based provide for the payment to the spouse, former spouse or former common-law partner of a share of annuity benefits that is less than the amount determined under paragraph (a), that lesser share.
Marginal note:Proportion of annuity value
(2) The proportion of the value of an annuity referred to in paragraph (1)(a) is
(a) subject to paragraph (b), the period subject to division divided by the judge’s number of years of service until the judge’s actual date of retirement or, in the case of a judge who has not yet retired, until the judge’s expected date of retirement determined in accordance with the regulations; or
(b) in the case of a judge who had resigned or been removed from office by reason of an infirmity, the quotient obtained by dividing
(i) the period, measured to the nearest one tenth of a year, from the beginning of the period subject to division to the earlier of the end of the period of cohabitation and the judge’s expected date of retirement if the infirmity had not occurred, determined in accordance with the regulations,
by
(ii) the judge’s number of years of service up to the judge’s expected date of retirement if the infirmity had not occurred, determined in accordance with the regulations.
Marginal note:Return of contributions
(3) Subject to subsections (3.1) and (4), where the Minister approves the division of the annuity benefits of a judge who was not eligible to be granted an annuity at the end of the period subject to division, the spouse, former spouse or former common-law partner shall be accorded a share of the annuity benefits consisting of
(a) an amount equal to 50% of the contributions made by the judge under section 50 during the period subject to division plus 50% of any interest payable on those contributions; or
(b) if the terms of the court order or agreement on which the application for division is based provide for the payment to the spouse, former spouse or former common-law partner of a share of annuity benefits that is less than the amount determined under paragraph (a), that lesser share.
Marginal note:Return of contributions — infirm annuitant
(3.1) Subject to subsection (4), where the Minister approves the division of the annuity benefits of a judge who had been granted an annuity by reason of an infirmity but was not otherwise eligible to be granted an annuity at the end of the period subject to division, the spouse, former spouse or former common-law partner shall be accorded a share of the annuity benefits consisting of
(a) an amount equal to 50% of the contributions that would have been made during the period described by subparagraph (2)(b)(i) if the judge had continued in office, plus 50% of any interest payable on those contributions; or
(b) if the terms of the court order or agreement on which the application for division is based provide for the payment to the spouse, former spouse or former common-law partner of a share of annuity benefits that is less than the amount determined under paragraph (a), that lesser share.
Marginal note:Election by spouse
(4) A judge’s spouse, former spouse or former common-law partner who is entitled to be accorded a share of the judge’s annuity benefits under subsection (3) or (3.1) may elect in the manner prescribed by the regulations, in lieu of receiving that share, to receive — at the time the judge becomes eligible to be granted an annuity, or at the time the judge would have become eligible to be granted an annuity had the judge not resigned or been removed from office by reason of an infirmity — a share of the annuity benefits for which the judge is or would have been eligible, determined as provided in subsection (1).
Marginal note:Death or resignation of judge
(5) Where an election has been made under subsection (4) and, before becoming eligible to be granted an annuity, the judge dies, resigns, is removed from office or otherwise ceases to hold office, the spouse, former spouse or former common-law partner shall instead be paid immediately the portion of the judge’s contributions to which the spouse was otherwise entitled under subsection (3) or (3.1).
Marginal note:Determination of periods of division and cohabitation
(6) For the purposes of this section and sections 52.15 and 52.16,
(a) a period subject to division is the portion of a period of cohabitation during which a judge held office under this Act, measured in years to the nearest one tenth of a year; and
(b) a period of cohabitation is the period during which interested parties cohabited, as specified by the court order or agreement on which an application for division is based or, if none is specified, as determined in accordance with the regulations on the basis of evidence submitted by either or both of the interested parties.
Marginal note:Death of spouse, former spouse or former common-law partner
(7) A share of annuity benefits that cannot be accorded under subsection (1) by reason only of the death of the spouse, former spouse or former common-law partner shall be paid to that person’s estate or succession.
Marginal note:Adjustment of accrued benefits
(8) Where the Minister approves the division of a judge’s annuity benefits, the annuity benefits payable to the judge under this Act shall be adjusted in accordance with the regulations.
Marginal note:Notice of division
(9) The Minister shall send a notice of the division of annuity benefits in the prescribed manner to each interested party.
Marginal note:Transfer and payment of share
52.15 (1) The spouse’s, former spouse’s or former common-law partner’s share of a judge’s annuity benefits shall be accorded by
(a) the transfer of the specified portion of that share to a retirement savings plan established for the spouse, former spouse or former common-law partner that is of the prescribed kind for the purposes of section 26 of the Pension Benefits Standards Act, 1985; and
(b) the payment of the remainder of that share, if any, to the spouse, former spouse or former common-law partner.
Marginal note:Calculation of specified portion
(2) For the purpose of paragraph (1)(a), the specified portion of a spouse’s, former spouse’s or former common-law partner’s share of a judge’s annuity benefits is
(a) if that share consists of a portion of the judge’s contributions, that portion; or
(b) in any other case, the amount determined by the formula
(A x B x C) / D
where
- A
- is the share of the annuity benefits,
- B
- is the period subject to division,
- C
- is the defined benefit limit, within the meaning of regulations made under the Income Tax Act, for the calendar year in which the share is accorded, and
- D
- is the portion of the annuity that is attributed, in accordance with the regulations, to the period subject to division.
Marginal note:Tax treatment
(3) For the purposes of the Income Tax Act, an amount transferred to a retirement savings plan in accordance with paragraph (1)(a) is deemed to be an amount transferred from a registered pension plan in accordance with subsection 147.3(5) of that Act.
Marginal note:Further divisions precluded
52.16 Where a division of annuity benefits is made in respect of a period subject to division under section 52.14, no further divisions may be made under that section in respect of that period.
Marginal note:Amounts transferred in error
52.17 Where the amount transferred or paid in respect of a spouse, former spouse or former common-law partner, or paid to the estate or succession of a deceased spouse, former spouse or former common-law partner, under section 52.14 or 52.15 exceeds the amount that the spouse, former spouse or former common-law partner was entitled to have transferred or paid or the estate or succession was entitled to be paid, the amount in excess constitutes a debt due to Her Majesty in right of Canada by that spouse, former spouse or former common-law partner or that estate or succession.
Marginal note:Amounts paid before adjustment
52.18 Where an adjustment is made under subsection 52.14(8) and an amount is or has been paid to a judge that exceeds the amount to which the judge is or would have been entitled under this Act after the effective date of that adjustment, the amount in excess constitutes a debt due to Her Majesty in right of Canada by the judge and may be recovered at any time by set-off against any annuity benefit that is payable to the judge under this Act, without prejudice to any other recourse available to Her Majesty in right of Canada with respect to its recovery.
Marginal note:Void transactions
52.19 (1) Amounts that a spouse, former spouse or former common-law partner is or may become entitled to under section 52.14 are not capable of being assigned, charged, anticipated or given as security, and any transaction that purports to assign, charge, anticipate or give as security any such amount is void.
Marginal note:Exemption from attachment, etc.
(2) Amounts that a spouse, former spouse or former common-law partner is or may become entitled to under section 52.14 are exempt from attachment, seizure and execution, either at law or in equity.
Marginal note:Access of spouse, etc. to division of benefits
52.2 Notwithstanding any other provision of this Act, a court of competent jurisdiction may order, for any period that the court determines, that no action be taken by the Minister under this Act that may prejudice the ability of the spouse, common-law partner, former spouse or former common-law partner to make an application or obtain the division of the judge’s annuity benefits under this Act.
Marginal note:Information for spouse, etc. re benefits
52.21 Subject to the regulations, the Minister shall, at the request of a spouse, common-law partner, former spouse or former common-law partner of a judge, provide that person with information prescribed by the regulations concerning the benefits that are or may become payable to or in respect of that judge under this Act.
Marginal note:Regulations
52.22 The Governor in Council may make regulations
(a) respecting the manner of making an application, the information that is to be provided in it and the documents that are to accompany it;
(b) prescribing the circumstances in which interested parties are deemed to have been living separate and apart for the purposes of paragraph 52.11(2)(b);
(c) prescribing circumstances in which a person may make an application or object to an application on behalf of another person, or may act on behalf of another person in proceeding with an application made by that other person;
(d) prescribing circumstances in which, the manner in which and the conditions under which the personal representative or the liquidator of the succession of a deceased judge or of a deceased spouse, former spouse or former common-law partner of a judge may make or object to an application or may proceed with an application that was made by or on behalf of the judge, spouse, former spouse or former common-law partner;
(e) when regulations are made under paragraph (c) or (d), respecting the manner in which and the extent to which any provision of this Act applies to a person referred to in that paragraph or in the circumstances prescribed by those regulations, and adapting any provision of this Act to those persons or circumstances;
(f) prescribing circumstances in which, the manner in which and the conditions under which a spouse, former spouse or former common-law partner of a judge may make an application after the death of the judge;
(g) respecting the notice of receipt of applications to be given to interested parties under subsection 52.11(3);
(h) respecting the withdrawal of applications;
(i) respecting the manner of submitting notices of objection under subsection 52.12(1);
(j) for determining the value of an annuity to be attributed to a period subject to division, for the purposes of subsection 52.14(1);
(k) for determining the expected date of retirement of a judge, for the purposes of subsections 52.14(2) and (3.1);
(l) respecting the actuarial assumptions on which the determinations made under paragraphs (j) and (k) are to be based;
(m) prescribing the manner in which a judge’s spouse, former spouse or former common-law partner may make an election under subsection 52.14(4), and respecting the notification of a judge of such an election;
(n) prescribing, for the purposes of paragraph 52.14(6)(b), the manner of determining the period during which interested parties cohabited;
(o) respecting the adjustment of the annuity benefits payable to a judge under subsection 52.14(8), including the determination of the effective date of the adjustment;
(p) generally respecting the division of the annuity benefits of a judge who resigns or is removed from office by reason of an infirmity;
(q) respecting the manner in which and the extent to which any provision of this Act applies, notwithstanding the other provisions of this Act, to a judge, to a spouse, former spouse, common-law partner or former common-law partner of a judge or to any other person when annuity benefits are divided under section 52.14, and adapting any provision of this Act to those persons;
(r) for determining the portion of an annuity to be attributed to a period subject to division, for the purposes of subsection 52.15(2);
(s) for the purposes of section 52.21, respecting the manner in which a request for information is to be made by a spouse, former spouse, common-law partner or former common-law partner of a judge, prescribing the information that is to be provided to that person concerning the benefits that are or may become payable to or in respect of the judge and specifying circumstances in which a request may be refused;
(t) prescribing remedial action that may be taken in prescribed circumstances in response to administrative error or the provision of erroneous information;
(u) prescribing any matter or thing that may be prescribed under sections 52.1 to 52.21; and
(v) generally for carrying out the purposes and provisions of sections 52.1 to 52.21 and this section.
- Date modified: