An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (S.C. 2019, c. 16)

Marginal note:2000, c. 12, s. 121

• 106 (1) Subsections 33(1) to (3) of the Act are replaced by the following:

  Marginal note:Application for diversion

  • 33 (1) Subject to this Part and the regulations, a person named in a financial support order may make an application to the Minister for diversion of a pension benefit payable to a recipient if

    • (a) the order is valid and subsisting; and

    • (b) the person against whom the order has been made is a recipient.

  • Marginal note:Representation

    (2) The application may be made, in accordance with the regulations, on behalf of a person by any other person or by a provincial enforcement service.

  • Marginal note:Diversion of pension benefits

    (3) The Minister shall, not later than the first day of the fourth month after the month in which the Minister receives the duly completed application, divert an amount or amounts computed in accordance with sections 36 to 40 and the regulations from any net pension benefit that is payable to the recipient named in the application, and any amount so diverted shall be paid, subject to subsection (4), to the applicant, to any other person designated for that purpose in the financial support order or to a provincial enforcement service if the law of the province permits payment to it.

• (2) Section 33 of the Act is amended by adding the following after subsection (2):

  • Marginal note:Contents of application

    (2.1) The application must contain the prescribed information and be accompanied by the prescribed documents.

  • Marginal note:Arrears of maintenance, alimony or support

    (2.2) A provincial enforcement service may, in respect of an application referred to in subsection (1), submit a document to the Minister that sets out a recipient’s arrears of maintenance, alimony or support and any prescribed information.

• 107 (1) Section 35.1 of the Act is amended by adding the following after subsection (1):

  • Marginal note:Pension benefit not immediately payable — Canadian Forces

    (1.1) A person who is entitled to support under a valid and subsisting financial support order may apply for an order under subsection (2) to any court in Canada that has jurisdiction to make a financial support order if the person against whom the financial support order is made

    • (a) has ceased to be required to make contributions under section 5 of the Canadian Forces Superannuation Act or has ceased to be a participant under subsection 5(1) of the Reserve Force Pension Plan Regulations;

    • (b) is not a recipient and is entitled to a deferred annuity under section 17 of the Canadian Forces Superannuation Act or subsection 44(1) of the Reserve Force Pension Plan Regulations; and

    • (c) has reached 50 years of age but has not yet reached 60 years of age.

• Marginal note:2012, c. 31, s. 502(2)

  (2) The portion of subsection 35.1(2) of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Order

    (2) A court to which an application is made under subsection (1) or (1.1) may make an order deeming the person against whom there is a valid and subsisting financial support order to have exercised an option under any of sections 12 to 13.001 of the Public Service Superannuation Act, section 18 of the Canadian Forces Superannuation Act or section 45 of the Reserve Force Pension Plan Regulations in favour of an annual allowance payable as of the date of the making of the order under this subsection if the court is satisfied that

Marginal note:1997, c. 1, s. 33

108 Sections 35.3 and 35.4 of the Act are replaced by the following:

Marginal note:1997, c. 1, s. 34

109 Paragraphs 36(c) to (g) of the English version of the Act are replaced by the following:

• 110 (1) The portion of subsection 37(2) of the French version of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Circonstances dans lesquelles les versements sont faits

    (2) Si le ministre estime que l’ordonnance visée au paragraphe (1) ne peut être modifiée afin d’y prévoir des versements périodiques ou qu’il n’est pas pratique de le faire, et qu’il l’a notifié au requérant et au prestataire, il est, sous réserve du paragraphe (3), procédé à une distraction de cinquante pour cent de la prestation mensuelle nette de pension revenant au prestataire jusqu’à ce que l’une des conditions suivantes soit remplie :

• (2) Subsection 37(3) of the French version of the Act is replaced by the following:

  • Marginal note:Dépôt annuel d’une déclaration écrite

    (3) Lorsque la distraction est faite en vertu du paragraphe (2), le requérant dépose annuellement auprès du ministre, dans le délai réglementaire, une déclaration écrite attestant qu’il est encore habilité à recevoir les sommes distraites, comportant les renseignements réglementaires et signée par lui en présence d’une personne appartenant à une catégorie réglementaire.

• 111 (1) The portion of subsection 39(1) of the Act before paragraph (a) is replaced by the following:

  Marginal note:Periodic financial support order versus lump sum pension benefit

  • 39 (1) If a financial support order provides only for periodic payments and the recipient’s pension benefit consists only of a lump sum, the Minister shall, immediately after receiving a duly completed application,

• (2) Paragraph 39(1)(b) of the Act is replaced by the following:

  • (b) cause the applicant to be notified in accordance with the regulations that, unless the financial support order is varied in accordance with this section, it will be treated as a financial support order for a lump sum payment of an amount equal to one periodic payment under the original financial support order.

• (3) Subsection 39(3) of the Act is repealed.

• (4) Subsections 39(5) and (6) of the Act are replaced by the following:

  • Marginal note:Applicant must submit varied financial support order to Minister

    (5) If, within 90 days after receiving the evidence referred to in subsection (2), the Minister receives a copy of a varied financial support order providing in whole or in part for a lump sum payment, the Minister shall proceed with the application for diversion in accordance with this Part.

  • Marginal note:If condition not satisfied

    (6) If a copy of the varied financial support order referred to in subsection (5) is not received by the Minister within the period mentioned in that subsection, the Minister shall treat the application for diversion as an application based on a financial support order for the payment of a lump sum equal to the amount of one periodic payment under the original financial support order.

Marginal note:1997, c. 1, s. 38

112 Section 40.1 of the Act is replaced by the following:

113 Section 41 of the Act is replaced by the following:

• 114 (1) Paragraph 42(1)(a) of the Act is replaced by the following:

  • (a) to the extent that it was in error paid to the recipient, is a debt due to Her Majesty by the recipient, and may be recovered from the recipient by way of deduction from, or set-off or compensation against, future pension benefits to be paid to the recipient; and

• (2) Subsection 42(2) of the Act is replaced by the following:

  • Marginal note:Recovery

    (2) If a diversion payment made to an applicant is greater than the amount that should have been paid to the applicant under this Part, the amount of the excess is a debt due to Her Majesty by the applicant and may be recovered from the applicant by way of deduction from, or set-off or compensation against, future diversion payments to be paid to the applicant under this Part.

• 115 (1) The portion of section 46 of the French version of the Act before paragraph (a) is replaced by the following:

  Marginal note:Règlements

  46 Le gouverneur en conseil peut, sur recommandation du ministre, prendre des règlements :

• (2) Paragraphs 46(a) and (b) of the Act are replaced by the following:

  • (a) respecting the making of applications on behalf of a person by another person or by a provincial enforcement service under section 33, and respecting the payment of diverted amounts to a person for the benefit of another person or to a provincial enforcement service;

  • (b) respecting the amount or amounts to be diverted from a recipient’s net pension benefit, and respecting the procedure to be followed in any situation not dealt with in sections 36 to 40;

• (3) Section 46 of the Act is amended by adding the following after subsection (a):

  • (a.1) respecting documents which must accompany an application made under section 33, which documents may vary according to the applicant and the circumstances specified in the regulations;

  • (a.2) respecting the submission of the document referred to in subsection 33(2.2);

• Marginal note:1997, c. 1, s. 39

  (4) Paragraphs 46(b.1) to (e) of the French version of the Act are replaced by the following:

  • b.1) concernant la communication des renseignements visés à l’article 35.3;

  • c) concernant les motifs entraînant la modification de la somme distraite ou la cessation de la distraction, ainsi que les procédures s’y rapportant;

  • d) prévoyant toute mesure d’ordre réglementaire prévue par la présente partie;

  • e) prévoyant toute autre mesure d’application de la présente partie.

• (5) Section 46 of the Act is amended by adding the following after paragraph (b.1):

  • (b.2) respecting methods of notification for the purpose of section 39 and providing for the day on which notification is deemed to be effected for the purpose of that section;

  • (b.3) prescribing the circumstances in which a copy of the financial support order referred to in subsection 39(5) is to be certified;

116 The Act is amended by adding the following after section 47:

117 The schedule to the Act is amended by replacing the reference after the heading “SCHEDULE” with the following:

118 Item 10 of the schedule to the Act is replaced by the following: