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Garnishment, Attachment and Pension Diversion Act (R.S.C., 1985, c. G-2)

Act current to 2022-09-11 and last amended on 2020-12-23. Previous Versions

PART IIDiversion of Pension Benefits to Satisfy Financial Support Orders (continued)

Amount of Diversion (continued)

Marginal note:Lump sum financial support order vs. periodic pension benefit

  •  (1) Where a financial support order provides only for a lump sum payment and the recipient’s pension benefit consists only of periodic payments, no diversion shall be made, except as provided in subsection (2).

  • Marginal note:Circumstances in which diversion shall be made

    (2) Where the Minister is of the opinion that it is impossible or impracticable for a financial support order described in subsection (1) to be varied to stipulate periodic payments and the Minister has so notified the applicant and the recipient, a diversion shall be made in the amount of fifty per cent of the recipient’s monthly net pension benefit, subject to subsection (3), until

    • (a) the financial support order has been satisfied in full by the diversion; or

    • (b) the Minister is satisfied, on receipt of evidence submitted by the applicant or recipient, that the financial support order has been satisfied in full by other means or is no longer valid and subsisting.

  • Marginal note:Filing of annual statement

    (3) Where a diversion described in subsection (2) is made, the applicant must file annually with the Minister, within the prescribed time, a written statement respecting the applicant’s continued entitlement to the diversion, containing the prescribed information, signed by the applicant and witnessed by a person of a prescribed category.

  • Marginal note:Where subsection (3) not complied with

    (4) Where subsection (3) is not complied with, the diversion shall be terminated as of the first day of the month following the expiration of the time prescribed under subsection (3), without prejudice to the applicant’s right to re-apply under this Part.

Marginal note:Financial support order providing for lump sum and periodic payments vs. periodic pension benefit

 Where a financial support order provides for a lump sum payment and for periodic payments and the recipient’s pension benefit consists only of periodic payments, the two components of the financial support order shall be treated as follows:

  • (a) the periodic component of the financial support order shall be dealt with in accordance with the rules in paragraphs 36(c) to (g); and

  • (b) where

    • (i) the amount diverted pursuant to paragraph (a) is less than fifty per cent of the recipient’s net pension benefit, and

    • (ii) the maximum that could be diverted pursuant to paragraph (a) as a result of the application of the rules in paragraphs 36(c) to (g) exceeds the amount actually diverted pursuant to paragraph (a),

    then, in respect of the excess referred to in subparagraph (ii), section 37 applies, with such modifications as the circumstances require, to the lump sum component of the financial support order, but the application of that section may not raise the total diversion under this Part to more than fifty per cent of the recipient’s net pension benefit.

  • R.S., 1985, c. G-2, s. 38
  • 1997, c. 1, s. 35

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

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

    • (a) take all reasonable steps to cause payment to the recipient of any portion of the recipient’s pension benefit that could be subject to diversion as a result of the application of the rules in paragraphs 36(c) to (g) to be delayed, in accordance with this section; and

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

  • Marginal note:Applicant must seek variation of financial support order

    (2) Where, within thirty days of receipt by the applicant of the notification referred to in paragraph (1)(b), the Minister is satisfied, on receipt of evidence submitted by the applicant, that the applicant has applied to court for variation of the financial support order to one providing in whole or in part for a lump sum payment, the Minister shall cause payment of the pension benefit to the recipient to be further delayed for a further period not exceeding ninety days.

  • (3) [Repealed, 2019, c. 16, s. 111]

  • Marginal note:Where condition not satisfied

    (4) Where the evidence referred to in subsection (2) is not received by the Minister within the period mentioned in that subsection, the Minister shall forthwith treat the application for diversion as an application based on a financial support order for the payment of a lump sum equal to the amount of one periodic payment under the original financial support order.

  • 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:Financial support order for lump sum and periodic payments vs. lump sum pension benefit

 Where a financial support order provides for a lump sum payment and periodic payments and the recipient’s pension benefit consists only of a lump sum, the two components of the financial support order shall be treated as follows:

  • (a) the lump sum component of the financial support order shall be dealt with in accordance with the rules in paragraphs 36(c) to (g); and

  • (b) where the maximum that could be diverted pursuant to paragraph (a) as a result of the application of the rules in paragraphs 36(c) to (g) exceeds the amount actually diverted pursuant to paragraph (a), then, in respect of that excess, section 39 applies, with such modifications as the circumstances require, to the periodic component of the financial support order.

  • R.S., 1985, c. G-2, s. 40
  • 1997, c. 1, s. 37

Marginal note:Arrears

 In the case of a financial support order that is an order or judgment for arrears of payments, despite paragraph 36(d), (f) or (g), subsection 37(2) or section 38, 39 or 40, the amount to be diverted may exceed 50% of the recipient’s net pension benefit.

General

Marginal note:Designation of Minister

 The Governor in Council may, by order, designate one or more federal ministers as the Minister or Ministers for the purposes of any provision of this Part and the enactments set out in items 12 and 16 of the schedule.

Marginal note:Application to vary amount being diverted or to terminate diversion

  •  (1) When a diversion is being carried out, either the applicant or the recipient may at any time apply to the Minister, in accordance with the regulations, for a variation in the amount being diverted or for termination of the diversion.

  • Marginal note:When variation or termination effective

    (2) Despite a recipient’s entitlement under an enactment listed in the schedule, the variation or termination of a diversion is effective only as of the first day of the month after the month in which the Minister receives the duly completed application for variation or termination, as the case may be.

Marginal note:Errors in amounts paid

  •  (1) Where a diversion payment made to an applicant is less than the amount that should have been paid to the applicant pursuant to this Part, the amount of the deficiency

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

    • (b) to the extent that it was in error retained by Her Majesty, becomes a debt due to the applicant by Her Majesty.

  • 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.

Marginal note:Where diversion is less than $10 per month

 Where periodic diversion payments under this Part are less than ten dollars per month, the Minister may direct that they be paid in arrears, in equal instalments, either quarterly, semi-annually or annually.

  • 1980-81-82-83, c. 100, s. 33

Marginal note:Death of recipient

 Periodic diversion payments shall terminate at the end of the month in which the recipient dies.

  • 1980-81-82-83, c. 100, s. 34

Marginal note:Offence

 Every person who makes a false or misleading representation to the Minister in any application or other proceeding under this Part is guilty of an offence punishable on summary conviction.

  • 1980-81-82-83, c. 100, s. 35

Marginal note:Regulations

 The Governor in Council may, on the recommendation of the Minister, make regulations

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

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

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

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

  • (b.1) respecting the provision of information for the purposes of section 35.3;

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

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

  • (c) respecting the grounds for, and the procedure relating to applications for, variations in the amount being diverted or for termination of a diversion;

  • (d) prescribing anything that by this Part is to be prescribed; and

  • (e) generally for carrying out the purposes and provisions of this Part.

Marginal note:Information to be made available to the public

 The Minister shall cause information on the manner of applying for a diversion under this Part to be made available throughout Canada in such a manner that the public will have reasonable access thereto.

  • 1980-81-82-83, c. 100, s. 37

PART IIIGeneral Provisions

Marginal note:Designation of Minister

 The Governor in Council may, by order, designate one or more federal ministers as the Minister or Ministers for the purposes of any provision of this Part or Part I.

Marginal note:Research

  •  (1) The Minister may undertake research related to matters governed by this Act.

  • Marginal note:Agreement to collect information

    (2) The Minister shall not collect information for the purpose of subsection (1) from a parliamentary entity unless the Minister entered into an agreement to do so with the entity in question.

  • Marginal note:Parliamentary entity

    (3) For the purpose of this section, parliamentary entity has the same meaning as in section 2.

Marginal note:Prohibition

 An officer or employee of, or person who is hired on a contractual basis by, Her Majesty in right of Canada or a parliamentary entity who obtains personal information, as defined in section 3 of the Privacy Act, under this Act shall not, except in performing their duties under this Act or if so authorized under another Act of Parliament, knowingly communicate the information or allow it to be communicated to any person, or knowingly allow any person to inspect or have access to any statement or other writing containing the information.

Marginal note:Offence and punishment

 Every person who contravenes section 50 is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding six months, or to both.

 
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