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Judges Act (R.S.C., 1985, c. J-1)

Full Document:  

Act current to 2022-07-25 and last amended on 2022-06-23. Previous Versions

PART IJudges and Prothonotaries (continued)

Division of Judge’s Annuity Benefits on Conjugal Breakdown (continued)

Marginal note:Division of annuity benefits

  •  (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), if the Minister approves the division of the annuity benefits of a judge who was not eligible to be paid 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), if 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 paid 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 in subparagraph (2)(b)(i) if the judge had continued in office, on the basis of the salary annexed to the office held by the judge at the time the judge ceased to hold 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 or paid an annuity, or at the time the judge would have become eligible to be paid 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) If an election has been made under subsection (4) and, before becoming eligible to be paid 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

  •  (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 × B × 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.

  • 2006, c. 11, s. 15

Marginal note:Further divisions precluded

 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.

  • 2006, c. 11, s. 15

Marginal note:Amounts transferred in error

 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.

  • 2006, c. 11, s. 15

Marginal note:Amounts paid before adjustment

 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.

  • 2006, c. 11, s. 15

Marginal note:Void transactions

  •  (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.

  • 2006, c. 11, s. 15

Marginal note:Access of spouse, etc. to division of benefits

 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.

  • 2006, c. 11, s. 15

Marginal note:Information for spouse, etc. re benefits

 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.

  • 2006, c. 11, s. 15

Marginal note:Regulations

 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.

  • 2006, c. 11, s. 15
  • 2017, c. 20, s. 226(F)

Payment of Salaries, Allowances, Annuities and Other Amounts

Marginal note:Amounts payable out of C.R.F.

  •  (1) The salaries, allowances and annuities payable under this Act and the amounts payable under sections 46.1, 51 and 52.15 shall be paid out of the Consolidated Revenue Fund.

  • Marginal note:Prorating

    (2) For any period less than a year, the salaries and annuities payable under this Act shall be paid pro rata.

  • Marginal note:Monthly instalments

    (3) The salaries and annuities payable under this Act shall be paid by monthly instalments.

  • Marginal note:First payment

    (4) The first payment of salary of any judge shall be made pro rata on the first day of the month that occurs next after the appointment of the judge.

  • Marginal note:Legal representatives

    (5) If a judge resigns the office of judge or dies, the judge or his or her legal representatives are entitled to receive such proportionate part of the judge’s salary as has accrued during the time that the judge executed the office since the last payment.

  • R.S., 1985, c. J-1, s. 53
  • 1989, c. 8, s. 13
  • 2002, c. 8, s. 111(E)
  • 2006, c. 11, s. 16
 
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