Short Title

Marginal note:Short title

1 This Act may be cited as the Pension Act.

Construction

Marginal note:Construction

2 The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.

Interpretation

Marginal note:Definitions

• 3 (1) In this Act,

  appearance of the injury or disease

  appearance of the injury or disease[Repealed, 1990, c. 43, s. 3]

  applicant

  demandeur

  applicant means a person who has applied for an award or for an increase in an award; (demandeur)

  application

  demande

  application means an application for an award; (demande)

  award

  compensation

  award means a pension, compensation, an allowance or a bonus payable under this Act; (compensation)

  Bureau

  Bureau[Repealed, 1995, c. 18, s. 46]

  Canadian Forces

  Forces canadiennes

  Canadian Forces means the armed forces referred to in section 14 of the National Defence Act, and includes any predecessor naval, army or air forces of Canada or Newfoundland; (Forces canadiennes)

  Chief Pensions Advocate

  Chief Pensions Advocate[Repealed, 1995, c. 18, s. 46]

  child

  enfant

  child, in relation to a member of the forces or a prisoner of war, includes

  • (a) an adopted child or foster child of that member or prisoner, and

  • (b) a child, adopted child or foster child of the spouse or common-law partner of that member or prisoner; (enfant)

  Commission

  Commission[Repealed, 1995, c. 18, s. 46]

  commissioner

  commissioner[Repealed, 1995, c. 18, s. 46]

  common-law partner

  conjoint de fait

  common-law partner, in relation to an individual, means a person who is cohabiting with the individual at the relevant time in a conjugal relationship, having so cohabited for a period of at least one year. For greater certainty,

  • (a) in the case of an individual’s death, the relevant time means the time of that death; and

  • (b) common-law partners cease to be common-law partners when they cease to cohabit. (conjoint de fait)

  compensation

  indemnité

  compensation means compensation payable under this Act on account of time spent by a former prisoner of war in enemy captivity or in evading or escaping from enemy captivity; (indemnité)

  Department

  ministère

  Department means the Department of Veterans Affairs; (ministère)

  dependent condition

  état de dépendance

  dependent condition, with respect to a person, means the condition of being without sufficient income or assets, other than the premises in which the person resides, to maintain that person; (état de dépendance)

  died or death

  décédé ou décès

  died or death includes death presumed for official purposes; (décédé ou décès)

  disability

  invalidité

  disability means the loss or lessening of the power to will and to do any normal mental or physical act; (invalidité)

  Entitlement Board

  Entitlement Board[Repealed, 1995, c. 18, s. 46]

  Examiner

  Examiner[Repealed, 1995, c. 18, s. 46]

  improper conduct

  mauvaise conduite

  improper conduct includes wilful disobedience of orders, wilful self-inflicted wounding and vicious or criminal conduct; (mauvaise conduite)

  Korean War

  guerre de Corée

  Korean War means the military operations undertaken by the United Nations to restore peace in the Republic of Korea, and the period denoted by the term Korean War is the period from June 25, 1950 to July 27, 1953, inclusive; (guerre de Corée)

  member of the forces

  membre des forces

  member of the forces means

  • (a) a person who has served in the Canadian Forces at any time since the commencement of World War I, and

  • (b) a Canadian merchant mariner of World War I, World War II or the Korean War, as described in section 21.1; (membre des forces)

  military service or service

  service militaire ou service

  military service or service means service as a member of the forces; (service militaire ou service)

  Minister

  ministre

  Minister means the Minister of Veterans Affairs or such other Minister as is designated by the Governor in Council; (ministre)

  pension

  pension

  pension means a pension payable under this Act on account of the death or disability of a member of the forces, including a final payment referred to in Schedule I; (pension)

  Pension Review Board

  Pension Review Board[Repealed, R.S., 1985, c. 20 (3rd Supp.), s. 21]

  pensioner

  pensionné

  pensioner means a person who has been awarded a pension; (pensionné)

  personal information

  renseignements personnels

  personal information has the same meaning as in section 3 of the Privacy Act; (renseignements personnels)

  prisoner of war

  prisonnier de guerre

  prisoner of war has the meaning assigned to that expression by section 71.1; (prisonnier de guerre)

  service in a special duty area

  service in a special duty area [Repealed, 2003, c. 12, s. 1]

  service in a theatre of actual war

  service sur un théâtre réel de guerre

  service in a theatre of actual war means

  • (a) any service as a member of the army or air force of Canada in the period commencing August 14, 1914 and ending November 11, 1918 in the zone of the allied armies on the continent of Europe, Asia or Africa, or in any other place at which the member has sustained injury or contracted disease directly by a hostile act of the enemy,

  • (b) any service as a member of the naval forces or merchant navy of Canada in the period described in paragraph (a) on the high seas or wherever contact has been made with hostile forces of the enemy, or in any other place at which the member has sustained injury or contracted disease directly by a hostile act of the enemy, and

  • (c) any service as a member of the forces in the period commencing September 1, 1939 and ending

    • (i) May 9, 1945, where the service was in any place outside Canada, and

    • (ii) August 15, 1945, where the service was in the Pacific Ocean or Asia,

    or in any place in Canada at which the member has sustained injury or contracted disease directly by a hostile act of the enemy; (service sur un théâtre réel de guerre)

  service in the Korean War

  service accompli pendant la guerre de Corée

  service in the Korean War means

  • (a) in the case of a member of the Canadian Forces, any service from the day of the member’s departure from Canada or the United States, including Alaska, to participate in the Korean War, until the earliest of

    • (i) the day on which the member next returned to Canada or the United States, including Alaska,

    • (ii) the day on which the member was next posted to a unit that was not participating in the Korean War,

    • (iii) the day on which the unit with which the member was serving, having ceased to participate in the Korean War, arrived at the place to which it had been next assigned, and

    • (iv) October 31, 1953, and

  • (b) in the case of a Canadian merchant mariner of the Korean War as described in subsection 21.1(5), any service during a period described in paragraph 21.1(2)(b); (service accompli pendant la guerre de Corée)

  special duty service

  service spécial

  special duty service has the same meaning as in subsection 2(1) of the Canadian Forces Members and Veterans Re-establishment and Compensation Act; (service spécial)

  special force

  contingent spécial

  special force means the Canadian Army Special Force that was constituted for the purposes of the Korean War; (contingent spécial)

  surviving common-law partner

  conjoint de fait survivant

  surviving common-law partner, in relation to an individual, does not include, for greater certainty, a person who, at the time of the individual’s death, was a former common-law partner of that individual; (conjoint de fait survivant)

  surviving spouse

  époux survivant

  surviving spouse, in relation to an individual, does not include, for greater certainty, a person who, at the time of the individual’s death, was a former spouse of that individual; (époux survivant)

  survivor

  survivant

  survivor, in relation to an individual, means the surviving spouse or surviving common-law partner of that individual; (survivant)

  treatment allowance

  treatment allowance[Repealed, 2000, c. 34, s. 20]

  Veterans Review and Appeal Board

  Tribunal

  Veterans Review and Appeal Board means the Veterans Review and Appeal Board established by section 4 of the Veterans Review and Appeal Board Act; (Tribunal)

  widowed mother

  widowed mother[Repealed, 2000, c. 12, s. 211]

  World War I

  Première Guerre mondiale

  World War I means the war waged by the German Emperor and His Allies against His Majesty and His Majesty’s Allies, and the period denoted by the term World War I is the period between August 4, 1914 and August 31, 1921, both dates inclusive; (Première Guerre mondiale)

  World War II

  Seconde Guerre mondiale

  World War II means the war waged by His Majesty and His Majesty’s Allies against Germany and Germany’s Allies, and the period denoted by the term World War II is the period between September 1, 1939 and April 1, 1947, both dates inclusive. (Seconde Guerre mondiale)

• Marginal note:Persons deemed members of forces

  (2) A British subject resident and domiciled in Newfoundland at the time of enlistment who served in the naval, army or air forces of His Majesty or in any of the naval, army or air forces of the countries allied with His Majesty during World War II shall be deemed to be a member of the forces for the purposes of section 21 if the disability or death in respect of which the application is made is not otherwise pensionable under that section or sections 64 to 66.

• Marginal note:Couples deemed to be living together

  (3) A member of the forces and the member’s spouse or common-law partner or survivor shall be deemed to be or to have been living together for the purposes of this Act where it is established that the member and the spouse or common-law partner are not, or the member and the survivor were not, living together by reason only of injury or disease, circumstances of a temporary nature or other circumstances not attributable to the member or the spouse or common-law partner or survivor.

Canadian Forces Members and Veterans Re-establishment and Compensation Act

Marginal note:No award payable

• 3.1 (1) Despite any other provision of this Act, no award is payable under this Act in respect of any application made by or in respect of a member of the forces after the coming into force of section 42 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act unless

  • (a) the application is in respect of a disability for which a pension has been granted or is an application under section 36 in respect of such a disability;

  • (b) the application is in respect of the death of a member of the forces, if the death occurred before the coming into force of section 42 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act or is the result of an injury or a disease, or the aggravation of an injury or a disease, for which a pension has been granted;

  • (c) the application is in respect of an injury or a disease that was attributable to or was incurred during, or arose out of or was directly connected to, service in the Canadian Forces on or before April 1, 1947, or was attributable to or was incurred during service in the Korean War or is an application under subsection 21(5) in respect of such an injury or a disease;

  • (d) the application is in respect of an aggravation of an injury or disease, if the aggravation was attributable to or was incurred during, or arose out of or was directly connected to, service in the Canadian Forces on or before April 1, 1947 or was attributable to or was incurred during service in the Korean War or is an application under subsection 21(5) in respect of such an aggravation;

  • (e) the Minister has determined under the Canadian Forces Members and Veterans Re-establishment and Compensation Act that the injury or disease, or the aggravation of the injury or disease, for which the application is made is inseparable — for the purpose of assessing the extent of disability — from an injury or a disease, or the aggravation of an injury or a disease, for which a pension has been granted; or

  • (f) the application is made under section 38 by a pensioner.

• Marginal note:Exception

  (2) Subsection (1) does not apply in respect of an application for compensation made under Part III.1 if the application relates to a period spent as a prisoner of war that began before the coming into force of section 64 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act.

Equality of Status

Marginal note:Status of males and females

4 Male and female members of the forces under this Act enjoy equality of status and equal rights and obligations under this Act.

Powers of the Minister

Marginal note:Powers of the Minister

• 5 (1) Subject to this Act and any other Act of Parliament and to the regulations made under this or any other Act of Parliament, the Minister has full power to decide on all matters and questions relating to the award, increase, decrease, suspension or cancellation of any pension or other payment under this Act and to the recovery of any overpayment that may have been made.

• Marginal note:Additional duties

  (2) The Governor in Council may, by order, confer on the Minister duties like those under subsection (1) in respect of pensions or other payments authorized by any other Act of Parliament or by the Governor in Council.

• Marginal note:Benefit of doubt

  (3) In making a decision under this Act, the Minister shall

  • (a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or pensioner;

  • (b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and

  • (c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case.

• Marginal note:Decisions shall be made expeditiously

  (4) Decisions of the Minister shall be made as informally and expeditiously as the circumstances and considerations of fairness permit.

Marginal note:Property and moneys in trust

6 The Minister may accept and administer any property and moneys conveyed to the Minister in trust for the benefit of pensioners, their dependants or any other persons on such terms and conditions as are set out in the terms of the conveyance or, if no conditions are set out, on such terms and conditions as the Minister deems reasonable for the purposes of the trust.

7 to 14 [Repealed, 1995, c. 18, s. 47]

• 15 (1) [Repealed, 1990, c. 43, s. 5]

• (2) and (3) [Repealed, 1995, c. 18, s. 47]

16 [Repealed, 1990, c. 43, s. 6]

17 to 20 [Repealed, 1995, c. 18, s. 47]

PART IIIPensions

Marginal note:Service during war, or special duty service

• 21 (1) In respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service in the Korean War, service as a member of the special force, and special duty service,

  • (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;

  • (b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

  • (c) no deduction shall be made from the degree of actual disability of a member of the forces who has rendered service in a theatre of actual war, service in the Korean War or special duty service on account of a disability or disabling condition that existed in the member before the member’s period of service in World War I or World War II, service in the Korean War or special duty service, as the case may be, except

    • (i) to the extent that the member is receiving a pension for that disability or disabling condition, or

    • (ii) to the extent that that disability or disabling condition was obvious or was recorded on medical examination prior to enlistment;

  • (d) an applicant shall not be denied a pension in respect of disability resulting from injury or disease or aggravation thereof incurred during military service or in respect of the death of a member of the forces resulting from that injury or disease or the aggravation thereof solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member;

  • (e) where a member of the forces who has seen service during World War I or World War II is, on retirement or discharge from that service, passed directly to the Department for treatment, a pension shall be paid to or in respect of the member for disability or death incurred by the member during treatment;

  • (f) no pension shall be paid for disability or death incurred by a member of the forces,

    • (i) while on leave of absence without pay,

    • (ii) during a period of absence without leave for which the pay of the member was stopped, or

    • (iii) when the member of the forces has, during leave of absence with pay, undertaken an occupation that is unconnected with military service,

    unless the disability or death was attributable to that military service;

  • (g) where

    • (i) a pension for disability has been awarded to a member of the forces in respect of service in a theatre of actual war, service in the Korean War or special duty service, and

    • (ii) the member’s degree of actual disability in respect of any of that service subsequently changes,

    the pension shall, regardless of the cause of the change, be increased, decreased or discontinued, as the case requires, to reflect the new degree of actual disability in respect of that service, except that, if a member is receiving a pension in respect of more than one type of service referred to in subparagraph (i), the total pension payable by virtue of this subsection may not exceed the amount of pension for the total actual disability arising from all the service referred to in that subparagraph;

  • (h) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and

  • (i) where, in respect of a survivor who was living with the member of the forces at the time of the member’s death,

    • (i) the pension payable under paragraph (b)

    is less than

    • (ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death,

    a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.

• Marginal note:Service in militia or reserve army and in peace time

  (2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,

  • (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;

  • (b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

  • (c) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and

  • (d) where, in respect of a survivor who was living with the member of the forces at the time of that member’s death,

    • (i) the pension payable under paragraph (b)

    is less than

    • (ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death,

    a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.

• Marginal note:Pensionable fraction of aggravated disability

  (2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.

• (2.2) [Repealed, 1990, c. 43, s. 8]

• Marginal note:Apportionment of pension

  (2.3) For the purposes of subsection 55(1), a person who

  • (a) is the survivor of a member of the forces, or

  • (b) is a former spouse or a former common-law partner of a member of the forces who has died

  is a pensionable applicant in relation to paragraph (1)(i) or (2)(d) if the person meets one of the requirements set out in subsection 45(1), even though the person was not living with the member of the forces at the time of the member’s death.

• Marginal note:Presumption

  (3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of

  • (a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;

  • (b) any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed duties and the place of that activity;

  • (c) the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;

  • (d) the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;

  • (e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;

  • (f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and

  • (g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.

• (4) [Repealed, 2000, c. 34, s. 21]

• Marginal note:Consequential disability

  (5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who

  • (a) is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and

  • (b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a)

  shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.

• Marginal note:Pension not to be denied because of members’ activities

  (6) A pension shall not be denied to a member of the forces under subsection (5) on the ground that, having regard to the disability for which the member was already receiving a pension, the member took part in any activities or went any place that the member ought to have known would cause the consequential disability.

• Marginal note:Where both spouses or common-law partners are members of the forces

  (7) Where spouses or common-law partners are residing together and both are pensioners or members of the forces to whom pensions have been or may be awarded under this section,

  • (a) each spouse or common-law partner shall be awarded the pension that he or she would be awarded if they were not spouses or common-law partners;

  • (b) the additional pension for a spouse or common-law partner shall be paid in respect of each of the spouses or common-law partners, at the rate applicable to that spouse’s or common-law partner’s rate of pension; and

  • (c) if the spouses or common-law partners have children in respect of whom a pension may be paid under this Act, the additional pension that may be paid under this Act in respect of the children may be paid to one but not both of the spouses or common-law partners,

    • (i) if the pensions of the spouses or common-law partners are payable at the same rate, at that rate, and

    • (ii) if the pensions of the spouses or common-law partners are payable at different rates, at the rate for the member of the forces whose pension is payable at the higher rate.

• Marginal note:Periodical declaration

  (8) The Minister may require a pensioner to submit, at such times and in such form as may be prescribed by the Minister, a statutory or other declaration stating

  • (a) that the pensioner is the person to whom the pension is payable,

  • (b) that any person in respect of whom the pensioner is in receipt of an additional pension is living,

  • (c) in any case where maintenance is relevant to the payment of pension, that the pensioner is maintaining or, where appropriate, is being maintained by the person in respect of whom the pensioner is in receipt of an additional pension, and

  • (d) whether an amount has been paid to or in respect of the pensioner or a deceased member of the forces that would require the Minister to reduce the pension under sections 25 and 26 and, if so, the particulars of the amount and the name of the person or body that paid it,

  and, if the pensioner refuses or neglects to submit the statutory or other declaration, the Minister may suspend future payments of pension until it is received.

• Marginal note:Presumption as to medical condition of member on enlistment

  (9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he or she became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his or her enlistment medical examination unless there is

  • (a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or

  • (b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member.

• Marginal note:Information volunteered by member as to medical condition to be corroborated

  (10) Information given by a member of the forces at the time of the enlistment of the member with respect to a disability or disabling condition is not evidence that the disability or disabling condition existed prior to the enlistment of the member unless there is corroborating evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the time the member became a member of the forces.

• (11) [Repealed, 1990, c. 43, s. 8]

• Marginal note:Definitions

  (12) For the purposes of this section,

  obvious

  obvious, when used with reference to a disability or disabling condition of a member of the forces at the time he or she became a member, means that the disability or disabling condition was apparent at that time or would have been apparent to an unskilled observer on examination of the member at that time;  (évident)

  recorded on medical examination prior to enlistment

  recorded on medical examination prior to enlistment, when used with reference to a disability or disabling condition of a member of the forces, means a written record, X-ray film or photograph of the disability or disabling condition that was made in

  • (a) any medical documentation made on enlistment of that member,

  • (b) any official documentation covering any former period of service of that member,

  • (c) the files of the Department relating to that member,

  • (d) the records of any compensation board or insurance company relating to that member, or

  • (e) the records of a medical practitioner or a clinic, hospital or other medical institution relating to that member. (consigné lors d’un examen médical avant l’enrôlement)

Marginal note:Definitions

• 21.1 (1) The definitions in this subsection apply in this section.

  Canadian manning pool

  Canadian manning pool means a manning pool of the Canadian merchant navy established under Order in Council P.C. 14/3550 of May 19, 1941. (dépôt d’équipages canadien)

  Canadian marine training school

  Canadian marine training school means a school established under Order in Council P.C. 148/9130 of November 22, 1941. (école d’entraînement maritime canadienne)

  distressed mariner

  distressed mariner means a distressed mariner as defined in subsection 37(7.1) of the War Veterans Allowance Act. (en détresse)

  war service bonus

  war service bonus means the bonus paid under The Merchant Seamen War Service Bonus Order, 1944, Order in Council P.C. 149/2705 of April 18, 1944, as amended. (indemnité pour service de guerre)

• Marginal note:Applicable rules

  (2) The following rules apply for the purposes of this section:

  • (a) the period of a person’s service on a voyage or trip referred to in subsection 37(7.3) of the War Veterans Allowance Act includes

    • (i) any period of duty preparatory to the voyage or trip,

    • (ii) any period of duty between the end of the voyage or trip and the person’s return to Canada,

    • (iii) any period of duty in Canada after the end of the voyage or trip that is consequential on the voyage or trip,

    • (iv) any period of authorized leave of absence with pay during the voyage or trip,

    • (v) any period of captivity, imprisonment or internment by the enemy or by any foreign power that was not allied or associated with Canada, if that period commenced during the voyage or trip or occurred as a consequence of the voyage or trip,

    • (vi) any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred during the voyage or trip, and

    • (vii) any period as a distressed mariner,

    but does not include any period after the person’s service on the voyage or trip was terminated for cause;

  • (b) the period of a person’s service on a voyage referred to in subsection (5) is the “Korean-related part of the voyage”, namely, the portion of the voyage during which the ship was in waters described in subsection (5) plus those portions of the voyage before and after that portion that, in the Minister’s opinion, were essential to the prosecution of the Korean War on behalf of the United Nations, and includes

    • (i) any period of authorized leave of absence with pay during the Korean-related part of the voyage,

    • (ii) any period of captivity, imprisonment or internment by the enemy or by any foreign power that was not allied or associated with Canada, if that period commenced during the Korean-related part of the voyage or occurred as a consequence of the Korean-related part of the voyage,

    • (iii) any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred during the Korean-related part of the voyage, and

    • (iv) any period as a distressed mariner that commenced during the Korean-related part of the voyage,

    but does not include any period after the person’s service on the voyage was terminated for cause;

  • (c) a distressed mariner’s period as such commences the moment the mariner was shipwrecked, discharged or left behind from a ship on which the mariner was engaged, and ends with the mariner’s arrival at the mariner’s proper return port within the meaning of section 299 of the Canada Shipping Act, 1934;

  • (d) the period of a person’s service as a member of a Canadian manning pool includes

    • (i) any period of training,

    • (ii) any period of authorized leave of absence with pay, and

    • (iii) any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred while the person was a member of the manning pool,

    but does not include any period after the person’s service as a member of the manning pool was terminated for cause;

  • (e) the existence of a manning pool record card for a person shall be taken as conclusive evidence that the person was a member of a Canadian manning pool during the period indicated on the card;

  • (f) evidence that the Director of Merchant Seamen paid war service bonus to a person in respect of any period shall be taken, in the absence of evidence to the contrary, as indicating that the person was a member of a Canadian manning pool during that period;

  • (g) where the service of a Canadian merchant mariner of World War II is based on subparagraph (4)(c)(ii), the period of service is the period in respect of which that mariner was paid war service bonus by the employer;

  • (h) where the service of a Canadian merchant mariner of World War II is based on subparagraph (4)(c)(iii), the period of service is the period from the beginning of the period of service on the first voyage to the end of the period of service on the last voyage with the same employer, except for any period in which that mariner was engaged in any employment, business or occupation not referred to in this section;

  • (i) the period of a person’s service as a trainee at a Canadian marine training school includes

    • (i) any period of authorized leave of absence with pay,

    • (ii) any period of transportation the costs of which were paid by the Department of Transport under the authority of Order in Council P.C. 148/9130 of November 22, 1941, and

    • (iii) any period of hospitalization resulting from an injury or disease or an aggravation thereof incurred while the person was a trainee,

    but does not include any period after the person’s service as a trainee was terminated for cause;

  • (j) where official records of a person’s service as a Canadian merchant mariner of World War I, World War II or the Korean War, or of injuries or disease suffered or contracted by a person during such service, are not available, the Minister may accept a statutory declaration or like statement from anyone if

    • (i) information about the existence of any registered or licensed ship on which it is claimed that the person served is corroborated by official records,

    • (ii) no information in the declaration or statement is contradicted by other evidence, and

    • (iii) after taking into consideration such corroboration as may be available, the Minister is satisfied, on the balance of probabilities, that the information in the declaration or statement is true; and

  • (k) the Minister may presume death in every case where, according to the evidence available as to the circumstances surrounding the disappearance of a person whose death is in question or the loss of the ship on which the person was serving, the Minister is satisfied beyond a reasonable doubt that the death has in fact occurred.

• Marginal note:Canadian merchant mariner of World War I

  (3) A Canadian merchant mariner of World War I is

  • (a) any person who is a merchant navy veteran of World War I referred to in paragraph 37(7.3)(a), (b) or (c) of the War Veterans Allowance Act; or

  • (b) any person who, during World War I, served in a Canadian manning pool, in another merchant navy organization or in a form of service reasonably similar, or analogous, to one described in paragraph (4)(b), (c) or (d).

• Marginal note:Canadian merchant mariner of World War II

  (4) A Canadian merchant mariner of World War II is

  • (a) any person who is a merchant navy veteran of World War II referred to in paragraph 37(7.3)(a), (b) or (c) of the War Veterans Allowance Act;

  • (b) any person who, during World War II,

    • (i) signed an agreement with the Director of Merchant Seamen to join a Canadian manning pool and to serve at sea on foreign-going ships as directed by that Director, or the Director’s staff, for a period of two years or for the duration of World War II, whichever was the shorter period, and

    • (ii) served, in any capacity, in accordance with the agreement;

  • (c) any person who, during World War II, was permanently or recurrently employed at sea by an owner or charterer of a ship or by Canadian Marconi Company Limited, and who

    • (i) signed an agreement to continue to serve at sea with that employer for the duration of the war if so required by that employer,

    • (ii) was paid war service bonus by that employer, or

    • (iii) made two or more voyages referred to in paragraph 37(7.3)(a) of the War Veterans Allowance Act on ships operated by the same employer, if the employer was Canadian National Steamships, Canadian Pacific Steamships, Imperial Oil, Park Steamships or any other shipping company prescribed by the regulations; or

  • (d) any trainee at a Canadian marine training school during World War II who signed an agreement to enter a Canadian manning pool at the end of the school training period.

• Marginal note:Canadian merchant mariner of the Korean War

  (5) A Canadian merchant mariner of the Korean War is any person who, at any time during the period from June 25, 1950 to July 27, 1953, served on board a Canadian ship while it was making a voyage that entered any of the waters, including gulfs, bays and inlets, lying between

  • (a) the coasts of Siberia, Korea and China,

  and

  • (b) a line beginning at a point on the coast of Siberia at longitude 135° East; thence south to a point at latitude 38° 30′ North and longitude 135° East; thence southwesterly to a point at latitude 30° North and longitude 124° East; thence south to Shokoto Sho; thence westerly to Shichisei Seki; and thence westerly to a point on the coast of China at latitude 23° North.

Marginal note:Improper conduct

• 22 (1) Subject to this section, a pension shall not be awarded when the disability of the member of the forces was due to improper conduct.

• Marginal note:Dependent condition

  (2) The Minister may, when the applicant is in a dependent condition, award such pension as the Minister deems fit in the circumstances.

• Marginal note:Venereal disease

  (3) Where venereal disease was contracted by a member of the forces prior to enlistment and aggravated during service, pension shall be awarded for the total pensionable disability existing at the time of discharge in all cases where the member saw service in a theatre of actual war, and no increase in disability after discharge is pensionable, but, if it subsequently appears on examination that the disability has decreased in extent, pension shall be decreased accordingly; and pension may thereafter be increased or decreased, subject to the limitation prescribed in this section, in accordance with the degree of disability that may be shown to exist on any subsequent examination.

Marginal note:Prior occupation

23 The occupation, income or condition in life of a person prior to becoming a member of the forces does not in any way affect the amount of pension awarded to or in respect of that person.

24 [Repealed, 1995, c. 18, s. 48]

Marginal note:Reduction of pension

25 The Minister shall reduce a pension by a monthly amount determined under section 26 if, in respect of the same death or same disability for which the pension is payable,

• (a) an amount arising from a legal liability to pay damages is collected by or in respect of the pensioner; or

• (b) compensation is payable to or in respect of the pensioner under

  • (i) the Merchant Seamen Compensation Act,

  • (ii) the Government Employees Compensation Act,

  • (iii) any provincial workers’ compensation legislation,

  • (iv) a compensation plan established by any other legislation of a similar nature, whether legislation of Canada, a province or another jurisdiction, other than

    • (A) a compensation plan to which the pensioner has contributed, or

    • (B) a compensation plan that provides a payment or payments that are in substance a continuation of the pay or benefits of a member of the forces, or

  • (v) a compensation plan of a similar nature established by the United Nations or by or under an international agreement to which Canada is a party, other than

    • (A) a compensation plan to which the pensioner has contributed, or

    • (B) a compensation plan that provides a payment or payments that are in substance a continuation of the pay or benefits of a member of the forces.

Marginal note:Definitions

• 26 (1) The definitions in this subsection apply in this section.

  compensatory amount

  compensatory amount means the amount remaining, after subtracting any taxes, of the amount collected referred to in paragraph 25(a) or of the compensation payable referred to in paragraph 25(b). (montant compensatoire)

  monthly value

  monthly value means

  • (a) in respect of a compensatory amount that is payable in a lump sum, the monthly amount that, in the Minister’s opinion, would result from converting that lump sum to a life annuity payable monthly; or

  • (b) in respect of a compensatory amount that is payable in instalments other than monthly instalments, the monthly amount that would result from converting those instalments to monthly instalments. (valeur mensuelle)

• Marginal note:Amount of pension reduction

  (2) Except as provided by subsection (3), the amount by which the pension shall be reduced for the purpose of section 25 is the lesser of

  • (a) the pension, and

  • (b) one half of the monthly value of the compensatory amount.

• Marginal note:Special cases

  (3) If the compensatory amount is an amount referred to in paragraph 25(a) collected from Her Majesty in right of Canada, or is compensation referred to in subparagraph 25(b)(v), the amount by which the pension shall be reduced for the purpose of section 25 is the lesser of

  • (a) the pension, and

  • (b) the monthly value of the compensatory amount.

• Marginal note:Recalculation of pension reduction

  (4) If a change occurs in the amount of the pension or the monthly value of the compensatory amount, or both, the amount by which the pension shall be reduced for the purpose of section 25 shall be recalculated accordingly.

• Marginal note:Overpayments

  (5) If

  • (a) part of a compensatory amount is paid to or in respect of a pensioner before the reduction of pension in accordance with this section has taken effect, or

  • (b) an increase in the monthly value of a compensatory amount is paid to or in respect of a pensioner before the recalculation of the reduction of pension in accordance with subsection (4) has taken effect,

  the amount or additional amount, as the case may be, of the reduction of pension that should have been in effect during the interval in question is an overpayment for the purpose of section 83.

27 [Repealed, 2000, c. 34, s. 22]

Marginal note:Fees and charges to be certified

28 No action lies against any person in respect of services performed in connection with the preparation or prosecution of any application, unless the Minister has certified that the amount claimed is a fair and reasonable charge for the services rendered and properly payable by the person against whom the claim is made.

Marginal note:Payments

• 29 (1) Pensions or allowances shall be payable monthly at the end of each month.

• Marginal note:When payments to cease

  (2) Notwithstanding anything in this Act, but subject to paragraphs 21(1)(h) and (2)(c) and subsections 38(3) and 72(5), any pension or allowance awarded or paid under this Act ceases to be payable on the first day of the month following the month of the death of the person to whom or in respect of whom the pension or allowance is paid.

• (3) [Repealed, 1995, c. 18, s. 50]

Marginal note:Awards not to be assigned or charged

• 30 (1) No award shall be assigned, charged, attached, anticipated, commuted or given as security, and the Minister may refuse to recognize any power of attorney granted by a person with reference to the payment of an award.

• Marginal note:Exemption from seizure and execution

  (1.1) An award is exempt from seizure and execution, either at law or in equity.

• Marginal note:Exception

  (2) Notwithstanding subsection (1), where any provincial or municipal authority in a province pays a person any advance, assistance or welfare payment for a period that would not be paid if a pension or an allowance under this Act had been paid for that period and subsequently a pension or an allowance becomes payable or payment of a pension or an allowance may be made under this Act to that person for that period, the Minister may deduct from any retroactive payment of pension or allowance and pay to the government of the province an amount not exceeding the amount of the advance, assistance or welfare payment paid, if that person had, on or before receiving the advance, assistance or welfare payment from the government of the province or the municipal authority, consented in writing to the deduction and payment.

Marginal note:Disposition of pension or allowance

• 31 (1) Any pension or allowance held in trust by the Minister and due to a deceased pensioner at the time of death does not form part of the estate of the deceased pensioner.

• Marginal note:Pensioner’s last sickness and burial expenses

  (2) The Minister may direct the payment of any pension or allowance referred to in subsection (1) either to the pensioner’s estate or to the survivor or child or children of the pensioner, or to the survivor and child or children, or may direct that it be paid in whole or in part to any person who has maintained, or been maintained by, the pensioner or toward the expenses of the pensioner’s last sickness and burial.

• Marginal note:Non-payment of pension or allowance

  (3) If no order for the payment of a pension or an allowance referred to in subsection (1) is made by the Minister, the pension or allowance shall not be paid.

• 32 (1) [Repealed, 2000, c. 34, s. 25]

• Marginal note:Retroactive pension

  (2) If any person who is or has been in receipt of war veterans allowance, relief or unemployment assistance from the Department is or has been awarded a retroactive pension or a retroactive increase of pension, the difference between the amount actually paid by the Department and the amount that would have been paid if the retroactive pension or the retroactive increase of pension had been payable when the war veterans allowance was being paid or the relief or unemployment assistance was issued shall be a second charge on the accumulated unpaid instalments of the pension and shall be withheld accordingly, subject to the payments to be made, as a first charge, to a province pursuant to subsection 30(2).

• (3) [Repealed, 2000, c. 34, s. 25]

33 [Repealed, 1995, c. 18, s. 53]

Children

Marginal note:Age limits

• 34 (1) No pension shall be paid to or in respect of a child after the last day of the month in which the child attained the age of eighteen years except

  • (a) where the child is unable to provide for the child’s own maintenance owing to physical or mental infirmity that occurred before the child attained the age of twenty-one years, in which case a pension may be paid while the child is incapacitated from earning a livelihood by the infirmity; or

  • (b) where the child is following and is making satisfactory progress in a course of instruction approved by the Minister, in which case the pension may be paid until the child has attained the age of twenty-five years.

• (2) [Repealed, 1989, c. 6, s. 30]

• Marginal note:When payable

  (3) The Minister may award a pension to or in respect of any child entitled to be maintained by the member of the forces in respect of whom pension is claimed.

• Marginal note:Child’s pension paid to parents, etc.

  (4) The Minister may direct that the pension for a child may be paid to the child’s mother or father, or to the child’s guardian, or to any person approved by the Minister, or direct that the pension be administered by the Department.

• Marginal note:Adopted child, foster child, etc.

  (5) When a child has been given in adoption or has been removed from the person caring for the child, by a competent authority, and placed in a suitable foster home, or is not being maintained by and does not form part of the family cared for by the member of the forces or the person who is pensioned as the former spouse, former common-law partner, survivor or parent of the member of the forces, or by the person awarded a pension under section 46, the pension for the child may, in accordance with the circumstances, be continued, discontinued or retained for the child for such period as the Minister may determine or increased up to an amount not exceeding the rate payable for orphan children, and any such award is subject to review at any time.

• Marginal note:Pension for children of deceased pensioner

  (6) The children of a deceased member of the forces who was, at the time of the death of the member, in receipt of a pension paid at a rate set out in one of classes one to eleven of Schedule I are entitled to a pension in accordance with the rates set out in Schedule II, regardless of the cause of that member’s death.

• Marginal note:Proportionate pension for children

  (7) The children of a deceased member of the forces who was, at the time of the death of the member, in receipt of a pension paid at a rate set out in one of classes twelve to twenty of Schedule I are each entitled to an equal portion of the greater of

  • (a) a proportionate pension equivalent to fifty per cent of the additional pension payable in respect of dependent children for the disability of the member, and

  • (b) a bonus payable by the Minister for the benefit of the child or children to such person as the Minister may direct and equivalent to the additional pension for one year payable to the member at the time of the member’s death in respect of a child or children of the member.

• Marginal note:Where pension suspended

  (7.01) Where the payment of the pension of a member of the forces was suspended at the time of the member’s death, the Minister may direct that the children be awarded the pension to which they would be entitled under subsection (6) or (7) if the pension had not been suspended.

• Meaning of minor child

  (7.1) For the purposes of subsections (8), (9) and (10), a child ceases to be a minor child after the last day of the month in which the child attains the age of eighteen years.

• Marginal note:Additional pension continued in certain circumstances

  (8) On and after

  • (a) the death of the spouse or common-law partner of a pensioner,

  • (b) the dissolution of the marriage of a pensioner,

  • (c) the separation of a pensioner from a spouse to whom or in respect of whom an additional pension is not being paid, or

  • (d) the cessation of cohabitation of a pensioner with the pensioner’s common-law partner,

  a pensioner pensioned on account of disability may be paid the additional pension for a spouse or common-law partner for so long as there is a minor child in respect of whom additional pension is being paid, if there is a person who is competent to assume and who does assume the household duties and care of the child or children.

• Marginal note:Pension on death of survivor

  (9) On and after the death of a survivor of a member of the forces who has been in receipt of a pension, or who would have been entitled to a pension but for the death, the survivor’s pension may be paid for so long as there is a minor child to or in respect of whom a pension is being paid, to a person who is competent to assume and who does assume the household duties and care of the child or children, and in those cases the pension payable in respect of those children shall continue to be paid.

• Marginal note:Pension payable to caregiver

  (10) Where a pension has been awarded to a minor child or minor children of a deceased member of the forces who had maintained a domestic establishment for the child or children and

  • (a) who, at the time of death, was himself or herself a survivor, or

  • (b) whose survivor does not receive a pension in respect of the death or receives only a portion of the pension,

  a pension and, if applicable, allowances under one or both of subsections 38(3) and 72(5), at respective rates not exceeding those that a survivor of the deceased member would be entitled to receive under this Act, may be paid to a person who is competent to assume and who does assume the household duties and care of the child or children, for so long as there is a minor child in respect of whom a pension is being paid, and in those cases the pension payable in respect of those children shall continue to be paid.

• Marginal note:Survivor and children

  (11) When pension is awardable under this Act in respect of the death of a member of the forces who died leaving a survivor and child or children, the child or children are entitled to a pension in accordance with the rate payable for orphan children in Schedule II or determined pursuant to subsection (7), whichever rate is applicable.

• Marginal note:Pension where both parents are members of the force

  (12) Where a pension is payable to or in respect of a child of members of the forces each of whom is or was a pensioner by reason of the member’s own disability,

  • (a) if one parent has died and a pension is payable in respect of the death of that parent, only one pension shall be paid to or in respect of the child and that pension, where the parent, at the time of death, was in receipt of a pension paid at the rate set out in one of classes

    • (i) one to eleven of Schedule I, is payable at the rate set out for an orphan child in Schedule II, or

    • (ii) twelve to twenty of Schedule I, is payable at the greater of

      • (A) the rate applicable to a child determined pursuant to subsection (7), and

      • (B) the rate set out in Schedule I applicable to the surviving parent with respect to a child; and

  • (b) if both parents have died and a pension is payable in respect of the death of each of them, only one pension shall be paid to or in respect of the child.

Pensions for Disabilities

Marginal note:Pension in accordance with extent of disability

• 35 (1) Subject to section 21, the amount of pensions for disabilities shall, except as provided in subsection (3), be determined in accordance with the assessment of the extent of the disability resulting from injury or disease or the aggravation thereof, as the case may be, of the applicant or pensioner.

• Marginal note:Maximum disability assessment

  (1.1) Despite anything in this Act, if the extent of disability of a member of the forces, in respect of the aggregate of all of the member’s disability assessments, exceeds 100%, no pension shall be paid in respect of any percentage points exceeding 100%.

• Marginal note:Assessments under Canadian Forces Members and Veterans Re-establishment and Compensation Act

  (1.2) Any disability assessments under the Canadian Forces Members and Veterans Re-establishment and Compensation Act shall be taken into account for the purpose of determining whether the extent of disability exceeds 100%.

• Marginal note:How extent of disability assessed

  (2) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of persons making those assessments.

• Marginal note:Statutory Instruments Act does not apply

  (2.01) The instructions and table of disabilities referred to in subsection (2) are exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.

• Marginal note:Limitation on reduction

  (2.1) Where a member of the forces has attained the age of fifty-five years and the assessment of the extent of a disability of the member has remained unchanged for a period of three years or more, no reduction in the assessment of the extent of that disability shall be made.

• Marginal note:Pulmonary tuberculosis

  (3) Pensions for disability resulting from pulmonary tuberculosis, where during the treatment of a member of the forces the presence of tubercle bacilli has been discovered in the sputum or it has been proved that the disease is moderately advanced and clinically active, shall be awarded and continued as follows:

  • (a) in the case of a member of the forces who served in a theatre of actual war and whose disease was attributable to or was incurred or was aggravated during service, either during World War I or World War II, and in the case of a member of the forces who did not serve in a theatre of actual war and whose disease was incurred during service during either of those Wars, a pension of one hundred per cent shall be awarded as of the date of completion of the treatment and shall be continued without reduction for a period of two years, unless further treatment is required;

  • (b) in the case of a member of the forces who did not serve in a theatre of actual war and whose disease was aggravated during service, either during World War I or World War II, a pension of ninety per cent shall be awarded as of the date of completion of the treatment and shall be continued without reduction for a period of two years, unless further treatment is required;

  • (c) in the case of a member of the forces who has seen service in the non-permanent active militia or in the reserve army during World War II or in the case of a member of the forces who has seen service in peace time, whose disease occurred on service and arose out of or was directly connected with that service, a pension of one hundred per cent shall be awarded as of the date of completion of the treatment and shall be continued without reduction for a period of two years, unless further treatment is required;

  • (d) in the case of a member of the forces who has seen service in the non-permanent active militia or in the reserve army during World War II or in the case of a member of the forces who has seen service in peace time, whose disease was aggravated during service and the aggravation arose out of or was directly connected with that service, a pension of ninety per cent shall be awarded as from the date of completion of the treatment and shall be continued without reduction for a period of two years, unless further treatment is required; and

  • (e) after the expiration of two years, no pension awarded in respect of pulmonary tuberculosis shall be reduced by more than twenty per cent at any one time, nor shall reductions be made at intervals of less than six months, and paragraphs (b) and (d) do not apply if the disease manifested itself within a period of three months after enlistment.

• Marginal note:When no deduction from pension

  (4) No deduction shall be made from the pension of any member of the forces because the member undertook work or perfected themself in some form of industry.

Marginal note:Additional pension for loss of paired organ or limb

36 Where a member of the forces who is in receipt of a pension on account of the loss of, or permanent loss of the use of, one of the paired organs or limbs of the member’s body suffers, either before or after that loss or loss of use, the loss of, permanent loss of the use of or impairment of the pair of that organ or limb from any cause whatever, an additional pension shall, on application, be awarded to that member in an amount equal to fifty per cent of the pension that would have been awarded to the member if the loss of, permanent loss of the use of or impairment of that organ or limb had occurred in circumstances in which a pension would have been payable under section 21.

• 37 (1) [Repealed, 1990, c. 43, s. 14]

• Marginal note:Permanent pension for disability

  (2) Permanent pensions for disability shall be awarded, or pensions for disability shall be continued permanently, whenever the disability is, or becomes, apparently permanent in extent, but if it subsequently appears that the disability has changed in extent, the pension shall be adjusted accordingly.

• (3) [Repealed, 1990, c. 43, s. 14]

• Marginal note:Restoration to pension

  (4) Any pensioner who has accepted a final payment under any provisions previously contained in this Act but now repealed may, if it is found on examination that his or her pensionable disability has persisted or increased, be restored to pension in respect thereof as of the date on which the amount of the final payment received by the pensioner is or was equal to the sum of the instalments of pension that the pensioner would have received if, instead of accepting a final payment, he or she had continued to receive pension at the rate in force immediately before the final payment was made, or as of six months prior to the date of the examination, whichever is the later date.

Marginal note:Attendance allowance

• 38 (1) A member of the forces who has been awarded a pension or compensation or both, is totally disabled, whether by reason of military service or not, and is in need of attendance shall, on application, in addition to the pension or compensation, or pension and compensation, be awarded an attendance allowance at a rate determined by the Minister in accordance with the minimum and maximum rates set out in Schedule III.

• Marginal note:When attendance allowance ceases

  (2) Where a member of the forces who has been awarded an attendance allowance under subsection (1) is in or enters a hospital under the jurisdiction of the Department, the Minister may, unless that member is in receipt of an attendance allowance at the maximum rate payable under that subsection or is blind, direct that payment of the allowance cease during the period that the member is in hospital, commencing with the later of the time the direction is made and one month after the end of the month in which the member entered hospital.

• Marginal note:Payment of allowance on death of member

  (3) Where a member of the forces who is in receipt of an attendance allowance under subsection (1) dies while residing with the spouse or common-law partner or a child of the member and

  • (a) the member was a person to whom an additional pension was, at the time of death, payable in respect of the spouse, common-law partner or child, or

  • (b) the pension awarded to the member was a final payment,

  the attendance allowance shall continue to be paid for a period of one year commencing on the first day of the month following the month of death to the survivor, if living, or, if not living, equally to any of the member’s children otherwise pensionable under this Act.

• Marginal note:Wear and tear of clothing on account of amputation

  (4) A member of the forces who is in receipt of a pension on account of an amputation of the leg at or above a Symes’ amputation is entitled to the allowance set out in Schedule III on account of wear and tear of clothing in respect of each such amputation.

• Marginal note:Idem

  (5) A member of the forces who is in receipt of a pension on account of an amputation of the arm at or above the wrist is entitled to the allowance set out in Schedule III on account of wear and tear of clothing in respect of each such amputation.

• Marginal note:Wear and tear of clothing on account of two amputations

  (6) A member of the forces who is in receipt of a pension on account of two amputations of a kind described in subsection (4) or (5) is, in addition to the allowances to which that member is entitled under that subsection, entitled in respect of the second amputation to an allowance on account of wear and tear of clothing equal to fifty per cent of the allowance referred to in that subsection.

• Marginal note:Wear and tear on account of other disabilities

  (7) A member of the forces who is in receipt of a pension for a disability other than a disability described in subsection (4) or (5) that causes wear and tear of clothing may be granted an allowance on account of wear and tear of clothing not exceeding the allowance set out in Schedule III.

• Marginal note:Specially made wearing apparel

  (8) A member of the forces who is in receipt of a pension for any disability that requires the wearing of specially made apparel is entitled, in addition to any other allowance to which the member is entitled under this section, to the allowance set out in Schedule III on account of the purchase of such apparel.

Marginal note:Date from which disability pension payable

• 39 (1) A pension awarded for disability shall be made payable from the later of

  • (a) the day on which application therefor was first made, and

  • (b) a day three years prior to the day on which the pension was awarded to the pensioner.

• Marginal note:Additional award

  (2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension.

Marginal note:Refusing to undergo medical or surgical treatment

• 40 (1) Where an applicant or pensioner should undergo medical or surgical treatment and the applicant or pensioner unreasonably refuses to undergo that treatment, the Minister may reduce, by not more than one half, the pension to which the extent of the applicant’s or pensioner’s disability would otherwise have entitled the applicant or pensioner.

• Marginal note:Exception

  (2) Subsection (1) does not apply to a refusal to undergo a major surgical operation.

Marginal note:Administration of awards

• 41 (1) Where it appears to the Minister that a person to whom an award is payable is

  • (a) by reason of infirmity, illness or other cause, incapable of managing their own affairs, or

  • (b) not maintaining an individual in respect of whom additional pension is payable in accordance with Schedule I,

  the Minister may direct that the award payable to that person be administered for the benefit of that person or any individual in respect of whom additional pension is payable in accordance with Schedule I, or both, by the Department or a person or agency selected by the Minister.

• Marginal note:Payment of portion of pension to other person

  (2) Where a pensioner is in receipt of a pension paid at a rate set out in one of classes seventeen to twenty of Schedule I, the Minister may, at the request of the pensioner, pay to any person in respect of whom additional pension is payable in accordance with Schedule I, without further inquiry as to whether the pensioner is maintaining that person, a portion of the pension not exceeding twice the amount of the additional pension payable in respect of that person.

Marginal note:Payment of portion of pension to dependant

• 42 (1) Subject to subsection (2), where a member of the forces to whom a pension is payable is required by an order of a court in Canada to pay an amount fixed in the order towards the maintenance of any person, in this section referred to as a “dependant”, the Minister may, on receipt of a certified copy of the order, direct that such portion of the pen- sion as the Minister may determine be paid directly to the dependant.

• Marginal note:Calculation of portion to be paid

  (2) Where the amount fixed by a court order to be paid to a dependant by a member of the forces described in subsection (1) is

  • (a) greater than the amount of any additional pension payable to the member in respect of that dependant, the portion of the pension directed by the Minister to be paid to the dependant pursuant to subsection (1) shall not exceed an amount equal to twice the amount of the additional pension; or

  • (b) less than the amount of any additional pension payable to the member in respect of that dependant, the portion of the pension directed by the Minister to be paid to the dependant pursuant to subsection (1) shall not exceed an amount equal to the amount of the additional pension.

• Marginal note:Allowance for maintenance of parents

  (3) Where a pensioner, prior to the pensioner’s enlistment or during the pensioner’s service, was maintaining or was substantially assisting in maintaining one or both of the pensioner’s parents or a person in the place of a parent, an amount not exceeding the amount set out in Schedule I as the additional pension for one child may be paid directly to each parent or person in the place of a parent or to the pensioner for so long as the pensioner continues that maintenance.

• Marginal note:Limitation

  (4) The benefits of subsection (3) shall be limited to a parent or parents or a person in the place of a parent who is, are or would be, if the pensioner did not contribute, in a dependent condition, and if the Minister is of the opinion that the pensioner is unable by reason of circumstances beyond his or her control to continue his or her contribution toward the maintenance of his or her parent or parents or a person in the place of a parent, the Minister may continue those benefits.

• Marginal note:Dependent parent

  (5) Where a parent or person in the place of a parent who was not wholly or to a substantial extent maintained by the pensioner prior to the pensioner’s enlistment or during the pensioner’s service by reason of the fact that the parent or person was not then in a dependent condition, subsequently falls into a dependent condition, is incapacitated by mental or physical infirmity from earning a livelihood and is wholly or to a substantial extent maintained by the pensioner, an amount not exceeding the amount set out in Schedule I as the additional pension for one child may be paid directly to each parent or person in the place of a parent or to the pensioner for so long as the pensioner continues that maintenance.

• (6) and (7) [Repealed, 2000, c. 12, s. 217]

• (8) [Repealed, 1990, c. 43, s. 18]

Marginal note:Additional pension not payable in certain circumstances

43 Additional pension for disability shall not be paid to a member of the forces in respect of a spouse or a dependent child unless the person in respect of whom additional pension is payable lives with the pensioner or maintains, or is maintained by, the pensioner to an extent that, in the opinion of the Minister, is at least equal to the amount of the additional pension.

44 [Repealed, 1990, c. 43, s. 19]

Pensions for Death

Marginal note:Pension to surviving spouse

• 45 (1) Subject to subsection 47(3), no pension shall be paid to the surviving spouse of a member of the forces unless the spouse was living with the member, was maintaining or being maintained by the member or was entitled to be maintained by the member at the time of the member’s death and for a reasonable time before the death.

• Marginal note:Pensions for surviving spouses

  (2) Except as otherwise provided in this Act, the surviving spouse of a member of the forces who was, at the time of the member’s death, in receipt of a pension paid at a rate set out in one of classes one to eleven of Schedule I is entitled to a pension in accordance with the rate for a survivor set out in Schedule II, regardless of the cause of that member’s death, if

  • (a) the surviving spouse was married to the member before the pension was granted, or

  • (b) the marriage took place after the grant of the pension, and

    • (i) the member’s death occurred one year or more after the date of the marriage, or

    • (ii) the member’s death occurred less than one year after the date of the marriage and the member had, at the date of the marriage, a reasonable expectation of surviving for at least one year after that date,

  but no payment shall be made under this subsection from a date prior to that from which pension is payable in accordance with section 56.

• Marginal note:Pensions for surviving common-law partners

  (2.1) Except as otherwise provided in this Act, the surviving common-law partner of a member of the forces who was, at the time of the member’s death, in receipt of a pension paid at a rate set out in one of classes one to eleven of Schedule I is entitled to a pension in accordance with the rate for a survivor set out in Schedule II, regardless of the cause of that member’s death, but no payment shall be made under this subsection from a date prior to that from which pension is payable in accordance with section 56.

• Marginal note:Proportionate pension for surviving spouses

  (3) Except as otherwise provided in this Act, the surviving spouse of a member of the forces who was, at the time of the member’s death, in receipt of a pension paid at a rate set out in one of classes twelve to twenty of Schedule I is entitled to a proportionate pension equivalent to fifty per cent of the aggregate of the pension awarded to the deceased member for disability and the additional pension payable for the spouse, excluding the allowances for exceptional incapacity, attendance and clothing, if

  • (a) the surviving spouse was married to the member before a pension was granted to the member, or

  • (b) the marriage took place after the grant of the pension, and

    • (i) the member’s death occurred one year or more after the date of the marriage, or

    • (ii) the member’s death occurred less than one year after the date of the marriage and the member had, at the date of the marriage, a reasonable expectation of surviving for at least one year after that date,

  but no payment shall be made under this subsection from a date prior to that from which pension is payable in accordance with section 56.

• Marginal note:Proportionate pension for surviving common-law partners

  (3.01) Except as otherwise provided in this Act, the surviving common-law partner of a member of the forces who was, at the time of the member’s death, in receipt of a pension paid at a rate set out in one of classes twelve to twenty of Schedule I is entitled to a proportionate pension equivalent to fifty per cent of the aggregate of the pension awarded to the deceased member for disability and the additional pension payable for the common-law partner, excluding the allowances for exceptional incapacity, attendance and clothing, but no payment shall be made under this subsection from a date prior to that from which pension is payable in accordance with section 56.

• Marginal note:Where pension suspended

  (3.02) Where the payment of the pension of a member of the forces was suspended at the time of the member’s death, the Minister may direct that the survivor be awarded the pension to which the survivor would be entitled under subsection (2), (2.1), (3) or (3.01) if the pension had not been suspended.

• Marginal note:Equivalent of member’s pension payable to survivor for one year

  (3.1) The survivor of a member of the forces who was living with that member at the time of the member’s death and is entitled to a pension under subsection (3) or (3.01) is entitled, for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), in lieu of the pension under subsection (3) or (3.01) during that period, to a pension equal to the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member of the forces under Schedule I at the time of the member’s death, and thereafter a pension shall be paid to the survivor in accordance with subsection (3) or (3.01).

• Marginal note:Apportionment of pension

  (3.2) For the purposes of subsection 55(1), a person who

  • (a) is the survivor of a member of the forces, or

  • (b) is a former spouse or a former common-law partner of a member of the forces who has died

  is a pensionable applicant in relation to subsection (3.1) if the person meets one of the requirements set out in subsection (1), even though the person was not living with the member of the forces at the time of the member’s death.

• Marginal note:Where survivor reclassified

  (3.3) Where, as a result of a determination by the Minister under subsection 48(3) or section 49, a survivor described in subsection (3.1) becomes entitled to a pension in accordance with the rates set out in Schedule II, any amount of pension that the survivor has received under subsection (3.1) shall be set off against the survivor’s entitlement under paragraph 21(1)(i) or (2)(d).

Marginal note:Pension to person cohabiting with member

46 On the death of a member of the forces, a person who was cohabiting in a conjugal relationship with the member in Canada at the time the member became a member of the forces and for a reasonable period before that time may be awarded a pension at a rate not exceeding the rate provided for a survivor in Schedule II or determined pursuant to subsection 45(3.01), whichever rate is applicable.

Marginal note:Pension to person awarded alimony, support or maintenance

• 47 (1) A spouse of a member of the forces who has died and who had been judicially separated or separated from the member, or a former spouse or former common-law partner of a member of the forces who has died, is not entitled to a pension unless the person was awarded alimony, support or maintenance or was entitled to an allowance under the terms of a written agreement with the member, in which case the Minister may award to the person the lesser of

  • (a) the pension the person would have been entitled to as a survivor of that member, or

  • (b) a pension equal to the alimony, support or maintenance awarded to the person or the allowance to which the person was entitled under the terms of the agreement.

• Marginal note:Review of pension

  (2) Subject to section 55, where a person described in subsection (1) is awarded a pension described in paragraph (b) of that subsection and is in a dependent condition, the Minister may at any time increase or decrease the amount of the pension, but when a pension is payable to that person it shall not, at any time, exceed the pension described in paragraph (a) of that subsection or be decreased below the lesser of paragraphs (a) and (b) of that subsection.

• Marginal note:Pension where no alimony, support, maintenance or alimentary allowance payable

  (3) Notwithstanding subsection (1), where a person described in that subsection is in a dependent condition, the Minister may award a pension at a rate not exceeding the rate provided for a survivor in Schedule II or determined pursuant to subsection 45(3) or (3.01), whichever rate is applicable, although the person has not been awarded alimony, support, maintenance or an alimentary allowance or is not entitled to an allowance under the terms of a written agreement, if, in the opinion of the Minister, the person would have been entitled to an award of alimony, support, maintenance or an alimentary or other allowance had the person made application for it under due process of law in any jurisdiction in Canada.

• Marginal note:Power to refuse pension to surviving spouse

  (4) The Minister may refuse to award a pension to a surviving spouse of a member of the forces who, at the time the member became a member of the forces and for a reasonable period before that time, was separated from the member and was not being maintained by the member.

Definition of dependant

• 48 (1) For the purposes of this section and section 49, dependant means a survivor or child of a member of the forces to whom a pension may be paid under this Part.

• Marginal note:Procedure where applicant dies

  (2) Where an application for a pension or allowance, or for an increase thereof, that was made by a member of the forces is pending at the time of the member’s death, the application shall, if the member is survived by a dependant, be proceeded with and determined in the same manner as if the member had not died.

• Marginal note:Rights of dependant

  (2.1) A dependant referred to in subsection (2) may appeal any decision taken in respect of any application proceeded with and determined pursuant to that subsection and has, in respect of the application, all of the rights that the member of the forces would have had had the member not died.

• Marginal note:Determination of entitlement to pension of deceased member

  (3) On application by a dependant of a deceased member of the forces who died without having applied for a pension and whose death was not attributable to military service, the Minister shall, in the same manner as if the application had been made by that member, determine whether that member would have been entitled to a pension had that member applied therefor at any time prior to death.

• Marginal note:Rights of dependant

  (3.1) A dependant referred to in subsection (3) may appeal any decision taken in respect of the dependant’s application under that subsection and has, in respect of that application, all of the rights that a member of the forces applying for a pension has.

• Marginal note:Deceased member deemed to have been in receipt of pension

  (4) Where it is determined that a pension would have been awarded to a member of the forces described in subsection (2) or (3), that member shall, for the purposes of subsections 34(6) and (7) and 45(2) and (3), be deemed to have been in receipt of a pension at the time of death.

• Marginal note:Idem

  (5) Where it is determined that a pension payable at a rate set out in one of classes twelve to twenty-one of Schedule I would have been awarded to a member of the forces described in subsection (2), that member shall, for the purposes of subsections 34(7) and 45(3), be deemed to have been in receipt of a pension for a disability assessed at the percentage determined by the Minister and applicable at the time of death.

Marginal note:Minister may increase disability assessment of deceased member

• 49 (1) The Minister may, on application by a dependant of a deceased member of the forces who, at the time of death, was in receipt of a pension paid at a rate set out in one of classes twelve to twenty-one of Schedule I, determine whether at the time of death the member’s pension should have been paid at a higher rate under Schedule I.

• Marginal note:Pension of deceased member deemed increased

  (2) Where it is determined that the pension of a deceased member of the forces described in subsection (1) should at the time of death have been paid at a higher rate under Schedule I, that member shall, for the purposes of subsections 34(6) and (7) and 45(2) and (3), be deemed to have been at the time of death in receipt of a pension paid at that higher rate.

• Marginal note:Dependants’ pensions

  (3) Except as provided by subsections 48(2), (4) and (5) and section 50, no increase in a dependant’s pension may be awarded except in accordance with this section.

Marginal note:Assessment determined after death

• 50 (1) Where a pensioner who was in receipt of a pension paid at a rate set out in one of classes twelve to twenty-one of Schedule I dies while on the strength of the Department for treatment of a pensioned disability, the Minister shall determine the assessment of the disability at the time of death.

• Marginal note:Increased assessment

  (2) Where, pursuant to subsection (1), it is determined that an assessment of disability should have been increased, that pensioner shall, for the purposes of subsections 34(7) and 45(3), be deemed to have been in receipt of a pension for the increased assessment at the time of death.

Marginal note:Limitation

• 51 (1) Except as otherwise provided in this Act, in any case where pension may be awarded under section 21 in respect of the death of a member of the forces, the member’s surviving spouse is entitled to a pension only if

  • (a) the surviving spouse was married to the member before the member was granted a pension for the injury or disease that resulted in the member’s death; or

  • (b) the marriage took place after the grant of the pension, and

    • (i) the member’s death occurred one year or more after the date of the marriage, or

    • (ii) the member’s death occurred less than one year after the date of the marriage and the Minister is of the opinion that the member had, at the date of the marriage, a reasonable expectation of surviving for at least one year thereafter.

• Marginal note:Cut-off date

  (2) No payment shall be made under this section from a date prior to that from which a pension is payable under section 56.

Marginal note:Pension to parent where dependent

• 52 (1) In any case where a pension may be awarded under section 21 in respect of the death of a member of the forces, the parent or person in the place of the parent of the member is entitled to a pension at a rate not exceeding the rate provided in Schedule II if

  • (a) the member died without leaving any survivor, former spouse or former common-law partner who is entitled to a pension, or a person awarded a pension under section 46; and

  • (b) the parent or person in the place of the parent is in a dependent condition and was, at the time of the death of the member, wholly or to a substantial extent maintained by the member.

• Marginal note:Pension to parent

  (2) Where a member of the forces has died leaving a survivor, former spouse or former common-law partner who is entitled to a pension or a person awarded a pension under section 46, in addition to a parent or person in the place of a parent who, prior to the enlistment of the member or during the member’s service, was wholly or to a substantial extent maintained by the member, the Minister may

  • (a) award to that parent or person a pension at a rate not exceeding the rate provided in Schedule II; or

  • (b) in any case where, after the death of the member, the pension to the survivor, former spouse or former common-law partner who is entitled to a pension or the person awarded a pension under section 46 has been discontinued, award to that parent or person a pension not exceeding the pension that might have been awarded to that parent or person if the member had died without leaving any survivor, former spouse or former common-law partner entitled to a pension or a person awarded a pension under section 46.

• Marginal note:Pension to parent or person becoming mentally or physically incapacitated

  (3) When a parent or person in the place of a parent who was not wholly or to a substantial extent maintained by the member of the forces at the time of the member’s death subsequently falls into a dependent condition, the parent or person may be awarded a pension, if the parent or person is incapacitated by mental or physical infirmity from earning a livelihood and in the opinion of the Minister the member of the forces would have wholly or to a substantial extent maintained the parent or person had the member not died.

• Marginal note:Dependent parents

  (4) In cases where a member of the forces has died leaving more than one parent or person in the place of a parent who were wholly or to a substantial extent maintained by the member, the rate of pension for one parent or person may be increased by an additional amount not exceeding the rate provided in Schedule II and the total pension may be apportioned between the parents or between the parent and the person.

• Marginal note:Subject to review

  (5) The pension to any parent or person in the place of a parent is subject to review from time to time and shall be continued, increased, decreased or discontinued in accordance with the amount deemed necessary by the Minister to provide a maintenance for the parent or person.

• Marginal note:Each child assumed to be supporting parents

  (6) When a parent or person in the place of a parent has children residing with the parent or person who should, in the opinion of the Minister, be earning an amount sufficient to permit them to contribute to the support of the parent or person, each child shall be deemed to be contributing not less than ten dollars a month toward that support.

• (7) [Repealed, 2000, c. 12, s. 223]

Marginal note:Pension to brother or sister where dependent

• 53 (1) In any case where pension may be awarded under section 21 in respect of the death of a member of the forces, the brother or sister of the member is entitled to a pension if

  • (a) the member died without leaving a child, survivor, former spouse or former common-law partner who is entitled to a pension, or a person awarded a pension under section 46; and

  • (b) the brother or sister is in a dependent condition and was, at the time of the death of the member, wholly or to a substantial extent maintained by the member.

• Marginal note:If brother or sister is or becomes an orphan

  (2) If a brother or sister of a member of the forces is in a dependent condition and is an orphan, or subsequently becomes an orphan by the death of a parent or parents, the brother or sister is entitled to a pension not in excess of the amount provided in Schedule II for orphan children.

• Marginal note:Age limit

  (3) No pension shall be paid to or in respect of a person who is a brother or sister of a member of the forces and has attained the age of eighteen years.

• (4) [Repealed, 1989, c. 6, s. 31]

• Marginal note:Exception for incapacity

  (5) Where a person is a brother or sister of a member of the forces, has attained the age of eighteen years, is in a dependent condition and was wholly or to a substantial extent maintained by that member at the time of the member’s death, that person may be awarded a pension not in excess of the amount provided in Schedule II for orphan children while that person is incapacitated by mental or physical infirmity from earning a livelihood.

• Marginal note:Subject to review

  (6) The pension to a brother or sister of a member of the forces is subject to review from time to time and shall be continued, increased, decreased or discontinued in accordance with the amount necessary to provide a maintenance for the brother or sister, but in no case shall the pension exceed the amount of pension provided for brothers and sisters in Schedule II or, in the case of orphan brothers and sisters, the amount of pension provided in Schedule II for orphan children.

Marginal note:One pension only

• 54 (1) No person shall be awarded more than one pension in respect of death.

• Marginal note:Exceptions

  (2) Except when children are awarded pensions, parents are awarded a pension jointly, brothers or sisters are awarded pensions or a pension is divided among several applicants, not more than one pension shall be awarded in respect of the death of any one member of the forces.

Marginal note:Apportionment of pension

• 55 (1) The Minister may apportion a pension among several pensionable applicants and any such apportionment may from time to time be reviewed and varied.

• Marginal note:Varying apportionment

  (2) On the discontinuance or reduction of a pension to one of the pensioners referred to in subsection (1), the pension awarded to any other such pensioner may be continued or increased if the total pension paid to the several pensioners does not exceed the amount prescribed in the schedules or determined pursuant to subsection 45(3), whichever amount is applicable.

Marginal note:Date from which death pension payable

• 56 (1) Pensions awarded with respect to the death of a member of the forces shall be payable with effect as follows:

  • (a) to or in respect of the member’s survivor or child, or to the member’s parent or any person in place of a parent who was wholly or to a substantial extent maintained by the member at the time of the member’s death, if an additional pension referred to in paragraph 21(1)(a) or (2)(a) was at the time of death being paid in respect of that person or that person is awarded a pension under paragraph 21(1)(b) or (2)(b),

    • (i) where a pension is awarded on a date less than three years after the date of death, from the day following the date of death, or

    • (ii) where a pension is awarded on a date three years or more after the date of death, from a date three years prior thereto;

  • (a.1) to or in respect of the member’s survivor or child, or to the member’s parent or any person in place of a parent who was wholly or to a substantial extent maintained by the member at the time of the member’s death, if no additional pension referred to in paragraph 21(1)(a) or (2)(a) was at the time of death being paid in respect of that person or that person is awarded a pension under section 48, from the later of

    • (i) the day on which application for the pension was first made, and

    • (ii) a day three years prior to the day on which the pension was awarded with respect to the death of the member;

  • (a.2) [Repealed, 2000, c. 34, s. 31]

  • (b) to a parent or person in place of a parent who was not wholly or to a substantial extent maintained by the member at the time of the member’s death, from a day to be fixed in each case by the Minister; and

  • (c) in respect of a posthumous child of the member, from the date of the child’s birth.

• Marginal note:Date from which increase in death pension payable

  (1.1) Where a pension has been awarded with respect to the death of a member of the forces, an increase in that pension awarded under section 49 shall be payable with effect as follows:

  • (a) to or in respect of the member’s survivor or child, or to the member’s parent or any person in place of a parent who was wholly or to a substantial extent maintained by the member at the time of the member’s death, whether or not an additional pension referred to in paragraph 21(1)(a) or (2)(a) was at the time of death being paid in respect of that person, the later of

    • (i) the day on which application for the increase was first made, and

    • (ii) a day three years prior to the day on which the increase was awarded; and

  • (b) to a parent or person in place of a parent who was not wholly or to a substantial extent maintained by the member at the time of the member’s death, from a day to be fixed in each case by the Minister.

• Marginal note:Additional award

  (2) Notwithstanding subsections (1) and (1.1), where a pension is awarded with respect to the death of a member of the forces, or an increase to that pension is awarded, and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension or the increase, as the case may be, should be awarded from a day earlier than the day prescribed by subsection (1) or (1.1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension or two years increase in pension, as the case may be.

Marginal note:Payments to surviving spouse or child pending consideration of claim

57 On the death of a member of the forces who was, at the time of death, in receipt of a pension and in respect of whom an additional pension for a surviving spouse or child is payable pending consideration of a claim from the surviving spouse or child or both for a pension on account of the death, payment of an amount equal to the pension payable with respect to the death of that member shall be made to the surviving spouse or child or both for a period not exceeding one month, which amount shall be refunded if the pension is eventually awarded or to be set off against the amount of any payment thereof.

58 and 59 [Repealed, 1989, c. 6, s. 32]

Marginal note:Recovery of lump sum pursuant to repealed provision

59.1 Where, before the coming into force of this section, a spouse or other person was paid an amount as a final payment pursuant to section 59 as that section read from time to time before the coming into force of this section, the Minister may retain that amount by way of deduction from any subsequent payments on account of the resumption of a pension pursuant to subsection 36(1) of the Statute Law (Superannuation) Amendment Act.

60 to 63 [Repealed, 2000, c. 34, s. 32]

Supplementary Pensions in Respect of Members of Allied Forces and Merchant Navies

Marginal note:Persons who served in allied forces or merchant navies in World War I

• 64 (1) Subject to subsection (2) and subsections 68(1) and (3), the benefits of this Act, in so far as those benefits or equivalent benefits are not provided under the laws or regulations of members of the Commonwealth, other than Canada, or under the laws and regulations of the several countries allied with His Majesty,

  • (a) shall be conferred on all persons domiciled in Canada on the date of commencement of World War I who, subsequent to that date, served in the naval, army or air forces or the merchant navy of any of those members of the Commonwealth, or in any of the forces or the merchant navy of any of the countries allied with His Majesty and who, while so serving during that War, suffered disability or death in respect of which a gratuity or pension has been awarded under the laws or regulations of any of those countries, or

  • (b) may be conferred on all persons domiciled in Canada on the date of commencement of World War I who, subsequent to that date, served in the naval, army or air forces or the merchant navy of any of those members of the Commonwealth, or in any of the forces or the merchant navy of any of the countries allied with His Majesty and who, while so serving during that War, suffered disability or death

    • (i) in respect of which an application for a gratuity or pension has been made and considered, but no gratuity or pension has been awarded, under the laws or regulations of any of those countries, and

    • (ii) that would have been pensionable under this Act if those persons had been members of the forces while so serving during that War,

  and the survivors, children and other dependants of the persons described in paragraphs (a) and (b) on whom the benefits of this Act are conferred are entitled to the benefits of this Act in so far as those benefits or equivalent benefits are not provided in respect of them under the laws or regulations of any of those countries.

• Marginal note:Qualification

  (2) Payments may be made under this section only to or in respect of a person who has been a resident of Canada for at least one year since the date of the disability or death in respect of which

  • (a) the gratuity or pension referred to in paragraph (1)(a) was awarded; or

  • (b) the application referred to in paragraph (1)(b) was made.

Marginal note:Persons who served in British forces or merchant navy in World War II

• 65 (1) Subject to subsection (2) and subsections 68(1) and (3), the benefits of this Act, in so far as those benefits or equivalent benefits are not provided under the laws or regulations of the United Kingdom,

  • (a) shall be conferred on all persons domiciled in Canada at any time during the four years immediately preceding the date of commencement of World War II who, subsequent to September 1, 1939, served in the naval, army or air forces or the merchant navy of the United Kingdom and who, while so serving during that War, suffered disability or death in respect of which a gratuity or pension has been awarded under the laws or regulations of the United Kingdom, or

  • (b) may be conferred on all persons domiciled in Canada at any time during the four years immediately preceding the date of commencement of World War II who, subsequent to September 1, 1939, served in the naval, army or air forces or the merchant navy of the United Kingdom and who, while so serving during that War, suffered disability or death

    • (i) in respect of which an application for a gratuity or pension has been made and considered, but no gratuity or pension has been awarded, under the laws or regulations of the United Kingdom, and

    • (ii) that would have been pensionable under this Act if those persons had been members of the forces while so serving during that War,

  and the survivors, children and other dependants of the persons described in paragraphs (a) and (b) on whom the benefits of this Act are conferred are entitled to the benefits of this Act in so far as those benefits or equivalent benefits are not provided in respect of them under the laws or regulations of the United Kingdom.

• Marginal note:Qualification

  (2) Payments may be made under this section only to or in respect of a person who has been a resident of Canada for at least one year since the date of the disability or death in respect of which

  • (a) the gratuity or pension referred to in paragraph (1)(a) was awarded; or

  • (b) the application referred to in paragraph (1)(b) was made.

Marginal note:Persons who served in allied forces or merchant navies in World War II

• 66 (1) Subject to subsection (2) and subsections 68(1) and (3), the benefits of this Act, in so far as those benefits or equivalent benefits are not provided under the laws and regulations of members of the Commonwealth, other than Canada and the United Kingdom, or under the laws and regulations of the several countries allied with His Majesty,

  • (a) shall be conferred on all persons domiciled in Canada at the date of commencement of World War II who, subsequent to that date, served in the naval, army or air forces or the merchant navy of any of those members of the Commonwealth, or in any of the forces or the merchant navy of any of the countries allied with His Majesty, and who, while so serving during that War, suffered disability or death in respect of which a gratuity or pension has been awarded under the laws or regulations of any of those countries, or

  • (b) may be conferred on all persons domiciled in Canada at the date of commencement of World War II who, subsequent to that date, served in the naval, army or air forces or the merchant navy of any of those members of the Commonwealth, or in any of the forces or the merchant navy of any of the countries allied with His Majesty, and who, while so serving during that War, suffered disability or death

    • (i) in respect of which an application for a gratuity or pension has been made and considered, but no gratuity or pension has been awarded, under the laws or regulations of any of those countries, and

    • (ii) that would have been pensionable under this Act if those persons had been members of the forces while so serving during that War,

  and the survivors, children and other dependants of the persons described in paragraphs (a) and (b) on whom the benefits of this Act are conferred are entitled to the benefits of this Act in so far as those benefits or equivalent benefits are not provided in respect of them under the laws or regulations of any of those countries.

• Marginal note:Qualification

  (2) Payments may be made under this section only to or in respect of a person who has been a resident of Canada for at least one year since the date of the disability or death in respect of which

  • (a) the gratuity or pension referred to in paragraph (1)(a) was awarded; or

  • (b) the application referred to in paragraph (1)(b) was made.

Marginal note:Newfoundland domicile

67 For the purposes of sections 64, 65 and 66, domicile in Newfoundland shall be deemed to be domicile in Canada.

Marginal note:Maximum award from other country

• 68 (1) In the consideration of any claim or the authorization of an award under section 64, 65 or 66, the Minister shall require the applicant or pensioner to take all or any steps to claim payment or additional payment under the laws or regulations of the several countries by authority of which the original grant of pension was made, or under the terms of any agreement that may have been or may hereafter be made with any of the countries concerned.

• Marginal note:Sections 64 and 66 may be extended to minors

  (2) The benefits of sections 64 and 66 may be conferred on persons who, although not domiciled in Canada, were on the date of commencement of World War I or World War II, as the case may be, minors resident in Canada and who are in all other respects qualified for the benefits of those sections.

• Marginal note:Non-Canadian merchant navy service

  (3) For the purposes of sections 64 to 66, service shall be recognized as service in the merchant navy of a country only if the service is reasonably similar, or analogous, to a form of service described in subsection 21.1(3) or (4).

• Marginal note:Service on allied ship

  (4) For the purposes of sections 64 and 66, service on board an allied ship, as defined in subsection 37(7.1) of the War Veterans Allowance Act, shall be recognized as service in the merchant navy of a country allied with His Majesty whether or not, at the time of the service, the country in which the ship was registered was allied with His Majesty.

Marginal note:South African War pensions

• 69 (1) Where a pension is being paid by the government of the United Kingdom in respect of the death or disability during the South African War of a member of a Canadian contingent that served in that War, an additional pension in an amount equal to the difference between that pension and the pension that would have been awarded to or in respect of that member under this Act had that member died or been disabled in the military service of Canada shall be paid to or in respect of that member.

• Marginal note:Survivor of South African War pensioner

  (2) The survivor of a member described in subsection (1) is entitled to the benefits of this Act in so far as those benefits or equivalent benefits are not provided to that survivor by the government of the United Kingdom.

Marginal note:Northwest Rebellion pensions to be continued

70 Any pension that was being paid on March 1, 1961 to or in respect of members of the forces that served in the Northwest Rebellion shall continue to be paid at the rates set out in Schedules I and II.

Marginal note:Increase of certain pensions while recipients resident in Canada

71 Pensions payable to or in respect of members of Canadian naval or army forces who were killed, had died or were disabled on active service, during drill or training or on other military duty prior to the outbreak of World War I, shall, during the continuance of the residence in Canada of the recipients of those pensions, be paid at the rates set out in Schedules I and II or determined pursuant to subsection 34(7) or 45(3), whichever rates are applicable.

PART III.1Prisoners of War

Interpretation

Marginal note:Definitions

• 71.1 (1) In this Part,

  basic pension

  basic pension means the monthly pension payable under Class 1 of Schedule I to a pensioner without a spouse, common-law partner or child; (pension de base)

  civilian

  civilian means

  • (a) a person described in section 9 or 16 of the Civilian War-related Benefits Act,

  • (b) a member of the Voluntary Aid Detachment, within the meaning assigned to that expression by section 43 of that Act,

  • (c) an Overseas Welfare Worker, within the meaning assigned to that expression by section 48 of that Act,

  • (d) a Civilian Member of Overseas Air Crew, within the meaning assigned to that expression by section 52 of that Act, or

  • (e) a person who during World War I was engaged in any activity equivalent to an activity engaged in by persons described in any of paragraphs (a) to (d) under the same basic conditions that applied to those persons; (civils)

  prisoner of war

  prisoner of war means a prisoner of war of Japan or a prisoner of war of another power; (prisonniers de guerre)

  prisoner of war of another power

  prisoner of war of another power means

  • (a) a person who during World War I or World War II

    • (i) served in the naval, army or air forces of Canada or Newfoundland,

    • (ii) served in the naval, army or air forces of His Majesty or any of the countries allied with His Majesty and who was domiciled in Canada or Newfoundland at the time of enlistment, or

    • (iii) was a civilian,

    and who was a prisoner of war of any power, other than Japan during World War II, that was engaged in military operations against His Majesty’s forces or against any of the countries allied with His Majesty or who was engaged in evading capture by or in escaping from such a power,

  • (b) a merchant navy veteran of World War I or World War II within the meaning of subsection 37(7.3) of the War Veterans Allowance Act who, during World War I or World War II, as the case may be, was a prisoner of war of any power, other than Japan during World War II, that was engaged in military operations against His Majesty’s forces or against any of the countries allied with His Majesty or who was engaged in evading capture by or in escaping from such a power,

  • (c) a person who served in the naval, army or air forces of Canada during military operations subsequent to World War I or World War II and who, while so serving, was a prisoner of war of any power or was engaged in evading capture by or in escaping from any power, or

  • (d) a Canadian merchant navy veteran of the Korean War within the meaning of subsection 37(7.4) of the War Veterans Allowance Act who, during the period referred to in that subsection, was a prisoner of war of any power or was engaged in evading capture by or in escaping from any power; (prisonniers de guerre d’une autre puissance)

  prisoner of war of Japan

  prisoner of war of Japan means

  • (a) a person who served in the naval, army or air forces of Canada or Newfoundland during World War II,

  • (b) a person who served in the naval, army or air forces of His Majesty or any of the countries allied with His Majesty during World War II and who was domiciled in Canada or Newfoundland at the time of enlistment,

  • (c) a merchant navy veteran of World War II within the meaning of subsection 37(7.3) of the War Veterans Allowance Act, or

  • (d) a civilian

  who, during World War II, was a prisoner of war of Japan or was engaged in evading capture by or in escaping from the Japanese. (prisonniers de guerre des Japonais)

• Marginal note:Running of time period

  (2) For the purposes of this Part, a period spent as a prisoner of war is the period from the time a person became a prisoner of war or became separated from their unit in enemy or enemy-occupied territory to the time the person ceased to be in enemy or enemy-occupied territory, but does not include any period spent performing the duties of a special agent.

Compensation

Marginal note:Basic compensation

• 71.2 (1) Subject to subsection (4), a prisoner of war is entitled, on application, to basic compensation equal to,

  • (a) in respect of any period spent as a prisoner of war of Japan,

    • (i) 5% of basic pension, where that person was such a prisoner for periods totalling at least 30 days but not more than 88 days,

    • (ii) 20% of basic pension, where that person was such a prisoner for periods totalling at least 89 days but not more than 364 days, or

    • (iii) 50% of basic pension, where that person was such a prisoner for periods totalling at least 365 days; and

  • (b) in respect of any period spent as a prisoner of war of another power,

    • (i) 5% of basic pension, where that person was such a prisoner for periods totalling at least 30 days but not more than 88 days,

    • (ii) 10% of basic pension, where that person was such a prisoner for periods totalling at least 89 days but not more than 545 days,

    • (iii) 15% of basic pension, where that person was such a prisoner for periods totalling at least 546 days but not more than 910 days,

    • (iv) 30% of basic pension, where that person was such a prisoner for periods totalling at least 911 days but not more than 1,275 days,

    • (v) 35% of basic pension, where that person was such a prisoner for periods totalling at least 1,276 days but not more than 1,641 days, or

    • (vi) 40% of basic pension, where that person was such a prisoner for periods totalling at least 1,642 days.

• Marginal note:Additional compensation

  (2) Subject to subsection (4), a prisoner of war who has a spouse or common-law partner or any children is entitled, on application, to additional compensation in respect of the spouse or common-law partner or children at the rate set out in Schedule I corresponding to the percentage of the basic pension applicable to the prisoner of war under subsection (1).

• Marginal note:Extension of additional compensation

  (3) Where a prisoner of war is in receipt of additional compensation under subsection (2) in respect of a spouse or common-law partner who is living with the prisoner of war and the spouse or common-law partner dies, except where compensation is payable to the prisoner of war under subsection 34(8), the additional compensation in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if the prisoner of war remarries or marries, as the case may be, during that period, until the date of remarriage or marriage.

• Marginal note:Application of Part III

  (4) In the determination of the entitlement of a prisoner of war to compensation, the applicable provisions of Part III, excluding subsections 38(4) to (8), apply, with any modifications that the circumstances require, as if a reference in those provisions to a member of the forces or a pensioner were a reference to a prisoner of war and as if a reference to a pension or a pension for disability were a reference to compensation.

Marginal note:Compensation for survivor or child

• 71.3 (1) Subject to section 71.4, the survivor or child of a deceased prisoner of war is entitled to compensation determined in accordance with the applicable provisions of Part III as if

  • (a) a reference therein to a member of the forces were a reference to a prisoner of war;

  • (b) a reference to a pension or a pension for disability were a reference to compensation; and

  • (c) a reference to a pensioner were a reference to a person in receipt of compensation.

• Marginal note:Deemed compensation

  (2) For the purposes of Part III, as applied to prisoners of war referred to in subsection (1), and for the purposes of section 71.4, where a prisoner of war would have been entitled to compensation under section 71.2 at the time of death had this Part been in force at that time, the prisoner of war shall be deemed to have been in receipt of compensation at the rate applicable to the prisoner of war under subsection 71.2(1).

Marginal note:Combined pension and compensation

71.4 Where a prisoner of war was, at the time of his death, in receipt of or eligible for a pension under Part III and compensation under this Part, the survivor or child of the prisoner of war is entitled to only one award under this Act, the amount of which shall be determined by reference to the sum of the awards paid to the prisoner of war or for which the prisoner of war was eligible.

Marginal note:Provisions not applicable

71.5 Sections 64 to 66 do not apply in respect of compensation under this Part.

PART IVExceptional Incapacity Allowance

Marginal note:Amount of allowance

• 72 (1) In addition to any other allowance, pension or compensation awarded under this Act, a member of the forces shall be awarded an exceptional incapacity allowance at a rate determined by the Minister in accordance with the minimum and maximum rates set out in Schedule III if the member of the forces

  • (a) is in receipt of

    • (i) a pension in the amount set out in Class 1 of Schedule I, or

    • (ii) a pension in a lesser amount than the amount set out in Class 1 of Schedule I as well as compensation paid under this Act or a disability award paid under the Canadian Forces Members and Veterans Re-establishment and Compensation Act, or both, if the aggregate of the following percentages is equal to or greater than 98%:

      • (A) the extent of the disability in respect of which the pension is paid,

      • (B) the percentage of basic pension at which basic compensation is paid, and

      • (C) the extent of the disability in respect of which the disability award is paid; and

  • (b) is suffering an exceptional incapacity that is a consequence of or caused in whole or in part by the disability for which the member is receiving a pension or a disability award under that Act.

• Marginal note:Ineligibility — permanent impairment allowance

  (1.1) A member of the forces who is eligible for a permanent impairment allowance under the Canadian Forces Members and Veterans Re-establishment and Compensation Act is not eligible to be awarded an exceptional incapacity allowance.

• Marginal note:Determination of exceptional incapacity

  (2) Without restricting the generality of paragraph (1)(b), in determining whether the incapacity suffered by a member of the forces is exceptional, account shall be taken of the extent to which the disability for which the member is receiving a pension or a disability award under the Canadian Forces Members and Veterans Re-establishment and Compensation Act has left the member in a helpless condition or in continuing pain and discomfort, has resulted in loss of enjoyment of life or has shortened the member’s life expectancy.

• Marginal note:Treatment, etc., to be considered in determining allowance

  (3) In determining the amount of the allowance that is to be awarded to a member of the forces who is suffering an exceptional incapacity, account may be taken of the degree to which the incapacity is lessened by treatment or the use of prostheses.

• Marginal note:Reduction in allowance

  (4) Where, in the opinion of the Minister, a member of the forces who is suffering an exceptional incapacity should undergo medical treatment or use a prosthesis and that member has, in the opinion of the Minister, unreasonably refused to do so, the Minister may reduce the allowance to which the incapacity would otherwise have entitled the member under this section by not more than one-half.

• Marginal note:Payment of allowance on death of member

  (5) Where a member of the forces who has been awarded an exceptional incapacity allowance under this section dies, the exceptional incapacity allowance shall, if that member was a member to whom an additional pension was, at the time of death, payable in respect of the member’s spouse, common-law partner or child living with the member, be paid for a period of one year commencing on the first day of the month following the month of the death, to the survivor, if living, or, if not living, equally to any of the member’s children otherwise pensionable under this Act.

Marginal note:Lump sum payment

73 Where a member of the forces to whom an allowance is awarded under section 72 has requested the purchase of any thing that, in the opinion of the Minister, will be of assistance to the member in relieving the exceptional incapacity he is suffering, the Minister may pay to the member in a lump sum, in lieu of periodic payments, an amount not exceeding the allowance payable to him for one year.

PART VAnnual Adjustment of Pensions and Allowances

Marginal note:Definitions

74 The definitions in this section apply in this Part.

basic pension

basic pension means the monthly basic pension payable under Schedule I to a Class 1 pensioner without a spouse, common-law partner or child. (pension de base)

Consumer Price Index

Consumer Price Index, in relation to an adjustment year, means the average of the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, for each month in that adjustment year. (indice des prix à la consommation)

first adjustment year

first adjustment year, in relation to a calendar year, means the period of twelve months ending on October 31 in the previous calendar year. (première année de rajustement)

second adjustment year

second adjustment year, in relation to a calendar year, means the period of twelve months immediately before the first adjustment year. (seconde année de rajustement)

Marginal note:Annual adjustment of basic pension

• 75 (1) The basic pension shall be adjusted annually in the manner prescribed by regulation of the Governor in Council, so that the basic pension payable for a month in the following calendar year is the greater of

  • (a) an amount equal to the product obtained by multiplying

    • (i) the basic pension that would have been payable for that month if no adjustment had been made under this Part with respect to that following year,

    by

    • (ii) the ratio that the Consumer Price Index for the first adjustment year that relates to that following year bears to the Consumer Price Index for the second adjustment year that relates to that following year, and

  • (b) an amount equal to one twelfth of the average annual gross composite wage, as of the thirty-first day of October of the year in which the adjustment is made, of categories of unskilled members of the federal public administration designated by the Minister, minus income tax for a single person calculated in the province with the lowest combined provincial and federal income tax rate.

• Marginal note:Adjustment not subsequently affected

  (2) A retroactive change in the wages or income tax rates referred to in paragraph (1)(b) does not affect an adjustment made in accordance with that paragraph.

• Marginal note:Adjustment of other pensions and allowances

  (3) All amounts set out in Schedules I to III shall be adjusted, in the manner prescribed by regulation of the Governor in Council, at the same times and by the same percentage as the basic pension.

Marginal note:Limitation

• 76 (1) Notwithstanding anything in this Part, the amount of any pension or allowance that may be paid to a person for a month in any calendar year shall not, by reason only of this Part, be less than the amount of the pension or allowance that was or may be paid to that person for any month in the immediately preceding calendar year.

• Marginal note:No adjustment when Consumer Price Index is lower

  (2) Notwithstanding anything in this Part, if, in relation to a calendar year, the Consumer Price Index for the first adjustment year is lower than the Consumer Price Index for the second adjustment year,

  • (a) no adjustment shall be made by virtue of paragraph 75(1)(a) in respect of that calendar year; and

  • (b) no adjustment shall be made by virtue of that paragraph in respect of any subsequent calendar year until, in relation to a subsequent calendar year, the Consumer Price Index for the first adjustment year that relates to that subsequent calendar year is higher than the Consumer Price Index for the second adjustment year that relates to the calendar year referred to in paragraph (a), in which case the second adjustment year that relates to the calendar year referred to in paragraph (a) is deemed to be the second adjustment year that relates to that subsequent calendar year.

Marginal note:Where basis of Consumer Price Index changed

77 Where at any time the Consumer Price Index is adjusted to reflect a new time basis or a new content basis, a corresponding adjustment shall be made in the Consumer Price Index for any twelve-month period that is used for the purpose of calculating the amount of any pension or allowance that may be paid.

Marginal note:Reference to Schedules I and II

78 A reference in subsection 33(2) of the Royal Canadian Mounted Police Superannuation Act to Schedules I and II of this Act shall be construed as a reference to the rates set out in those Schedules as increased by virtue of this Part.

PART VIProcedure

Marginal note:Definitions

79 In this Part,

Assessment Board

Assessment Board means two members of the Commission designated under section 87 of the former Act; (comité d’évaluation)

Commission

Commission means the Canadian Pension Commission established by section 5 of the former Act; (Commission)

Entitlement Board

Entitlement Board means an Entitlement Board established under section 91 of the former Act; (comité d’examen)

former Act

former Act means the Pension Act, as it read immediately before the day on which section 73 of An Act to establish the Veterans Review and Appeal Board, to amend the Pension Act, to make consequential amendments to other Acts and to repeal the Veterans Appeal Board Act comes into force. (loi antérieure)

Marginal note:Application

• 80 (1) Subject to subsection (2), no award is payable to a person unless an application has been made by or on behalf of the person and payment of the award has been approved under this Act.

• Marginal note:Exception

  (2) A survivor or child of a deceased member of the forces who, at the time of the member’s death,

  • (a) was living with the member, and

  • (b) was a person in respect of whom an additional pension was being paid to the member

  need not make an application in respect of a pension referred to in paragraph 21(1)(i) or (2)(d) or subsection 34(6), (7) or (11) or 45(2), (2.1), (3), (3.01) or (3.1) or an allowance referred to in subsection 38(3) or 72(5).

Marginal note:Application made to Minister

• 81 (1) Every application must be made to the Minister.

• Marginal note:Consideration of applications

  (2) The Minister shall consider an application without delay after its receipt and shall

  • (a) where the Minister is satisfied that the applicant is entitled to an award, determine the amount of the award payable and notify the applicant of the decision; or

  • (b) where the Minister is not satisfied that the applicant is entitled to an award, refuse to approve the award and notify the applicant of the decision.

• Marginal note:Counselling service

  (3) The Minister shall, on request,

  • (a) provide a counselling service to applicants and pensioners with respect to the application of this Act to them; and

  • (b) assist applicants and pensioners in the preparation of applications.

Marginal note:Review of decisions

• 82 (1) Subject to subsection (2), the Minister may, on the Minister’s own motion, review a decision made by the Minister or the Commission and may either confirm the decision or amend or rescind the decision if the Minister determines that there was an error with respect to any finding of fact or the interpretation of any law, or may do so on application if new evidence is presented to the Minister.

• Marginal note:Exception

  (2) Subsection (1) does not apply with respect to a decision made by an Assessment Board or Entitlement Board under the former Act.

Definition of overpayment

• 83 (1) In this section, overpayment, in relation to any period, means

  • (a) an award payment that was paid to a person in respect of that period and to which the person had no entitlement; or

  • (b) if an award payment was paid to a person in respect of that period that was in excess of the amount of the award payment to which the person was entitled, the amount of that excess.

• Marginal note:Recovery of overpayments

  (2) If, through any cause, an overpayment is paid to a person, the overpayment is a debt due to Her Majesty by that person or by that person’s estate or succession, and

  • (a) may be recovered by deduction from any future payments made pursuant to this Act to that person or to that person’s estate or succession;

  • (b) may be recovered in accordance with section 155 of the Financial Administration Act; and

  • (c) may be recovered in any court of competent jurisdiction.

• Marginal note:Remission of overpayments

  (3) If a person has received or obtained an overpayment and the Minister is satisfied that

  • (a) the overpayment cannot be recovered within the reasonably foreseeable future,

  • (b) the administrative costs of recovering the overpayment are likely to equal or exceed the amount to be recovered,

  • (c) repayment of the overpayment would cause undue hardship to the person, or

  • (d) the overpayment is the result of an administrative error, delay or oversight on the part of a public servant,

  the Minister may, unless that person has been convicted of an offence under the Criminal Code in connection with the receiving or obtaining of the overpayment, remit all or any portion of the overpayment.

• Marginal note:Erroneous awards

  (4) Notwithstanding anything in this Act, the Minister may continue payment of an award, in whole or in part, to a person who is not entitled to it, or not entitled to a portion of it, if

  • (a) the amount paid to the person to which the person was not entitled is the result of an administrative error, delay or oversight on the part of a public servant and has been remitted pursuant to paragraph (3)(d);

  • (b) no part of the amount paid to the person to which the person was not entitled was the result of a misrepresentation or of concealment of a material fact on the part of the person, in the opinion of the Minister;

  • (c) cancellation or reduction of the award would, in the opinion of the Minister, cause undue hardship to the person; and

  • (d) the award has been paid to the person for five years or more.

• Marginal note:Recovery from survivor or surviving dependant

  (5) Where a survivor or surviving dependant of a deceased member of the forces retains any amount of the member’s award paid after the last day of the month in which the member died, that amount may be deducted from any award granted to the survivor or surviving dependant.

Marginal note:Review

84 An applicant who is dissatisfied with a decision made by the Minister under this Act, except under section 83, or under subsection 34(5) of the Veterans Review and Appeal Board Act, may apply to the Veterans Review and Appeal Board for a review of the decision.

Marginal note:Permission of Board required

• 85 (1) The Minister may not consider an application for an award that has already been the subject of a determination by the Veterans Review and Appeal Board or one of its predecessors (the Veterans Appeal Board, the Pension Review Board, an Assessment Board or an Entitlement Board) unless

  • (a) the applicant has obtained the permission of the Veterans Review and Appeal Board; or

  • (b) the Veterans Review and Appeal Board has referred the application to the Minister for reconsideration.

• Marginal note:Applications before March 30, 1971

  (2) Notwithstanding subsection (1), the Minister may consider any application made before March 30, 1971 that was the subject of a final determination by the Commission or any other body empowered to grant or make awards before that day.

Marginal note:Transitional

• 86 (1) An applicant who is dissatisfied with a decision made by the Commission under the former Act and who has not made a request for a hearing under section 87 or 88 of the former Act may apply to the Veterans Review and Appeal Board to review the decision.

• Marginal note:Transitional

  (2) An applicant who is dissatisfied with a decision made by an Assessment Board or Entitlement Board under the former Act may appeal the decision to the Veterans Review and Appeal Board.

• Marginal note:Exception

  (3) Subsection (2) does not apply to a decision that has already been subject to a determination by the Veterans Appeal Board.

PART VIIGeneral

Marginal note:Inquiries Act

• 87 (1) The Minister has all the powers of a commissioner appointed under Part I of the Inquiries Act for the purpose of carrying out the functions of the Minister under this Act.

• Marginal note:Taking oaths, etc.

  (2) Any officer or employee of the Department authorized by the Minister may, in the course of their employment and subject to any other Act of Parliament or any Act of the legislature of a province, administer oaths and take and receive affidavits, declarations and solemn affirmations for the purpose of the administration of this Act or the regulations, and every person so authorized has, with respect to any such oath, affidavit, declaration or affirmation, all the powers of a commissioner for taking affidavits.

• Marginal note:Acceptance of oaths, etc.

  (3) The Minister may accept, for the purpose of the administration of this Act or the regulations, any oath administered or any affidavit, declaration or solemn affirmation taken or received by any officer or employee of

  • (a) a department in, or other portion of, the federal public administration specified in Schedule I, IV or V to the Financial Administration Act, or

  • (b) a department of the government of a province

  who has all the powers of a commissioner for taking affidavits.

Marginal note:Representation of applicant

88 In all proceedings under this Act, an applicant may be represented by a service bureau of a veterans’ organization or, at the applicant’s own expense, by any other representative of the applicant’s choice.

Marginal note:Medical examinations

• 89 (1) The Minister may at any time require an applicant or pensioner to undergo a medical examination by a person qualified to practise medicine.

• Marginal note:Non-compliance

  (2) Where an applicant or pensioner who is required by the Minister to undergo a medical examination unreasonably fails to do so, the Minister may suspend payment of a pension to the applicant or pensioner for the period during which the failure continues.

Marginal note:Expenses

• 90 (1) An applicant or pensioner who undergoes a medical examination required by the Minister is entitled to be paid a reasonable amount for travel and living expenses incurred by reason of the examination, in accordance with regulations made in relation to veterans health care under subsection 5(1) of the Department of Veterans Affairs Act.

• Marginal note:Medical fees

  (2) A qualified medical practitioner who is not employed in the Department is entitled to be paid such attendance fee as may be fixed by the Treasury Board to give evidence or for conducting a medical examination required by the Minister.

Marginal note:Regulations

91 The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect, including regulations prescribing

• (a) the manner of making an application or a statement or of giving notice under this Act, the information and evidence to be furnished and the procedure to be followed in dealing with applications;

• (b) the times at which and the manner in which awards are to be paid;

• (b.1) shipping companies for the purposes of subparagraph 21.1(4)(c)(iii); and

• (c) the procedure to be followed by the Minister in making decisions under section 82 or 83.

91.1 [Repealed, 2005, c. 21, s. 108]

91.2 [Repealed, 2005, c. 21, s. 108]

91.3 [Repealed, 2005, c. 21, s. 108]

91.4 [Repealed, 2005, c. 21, s. 108]

91.5 [Repealed, 2005, c. 21, s. 108]

Marginal note:Forms

92 Every application, statement or notice required or permitted by this Act, or by any enactment incorporating this Act by reference, must be made or given in the form required by the Minister.

Marginal note:Combining information

93 The Minister may combine in any single document, and in any electronic form, the collection of personal information required for the purposes of this Act and other enactments administered by the Minister.

94 to 96 [Repealed, 1995, c. 18, s. 73]

97 to 103 [Repealed, R.S., 1985, c. 20 (3rd Supp.), s. 23]

104 [Repealed, R.S., 1985, c. 20 (3rd Supp.), s. 24]

105 to 108 [Repealed, 1995, c. 18, s. 73]

Marginal note:Right to inspect records, etc.

• 109 (1) The persons described in subsection (2) may, for the purpose of preparing an application or deciding whether or not to prepare an application, inspect

  • (a) the service and medical records of a member of the forces;

  • (b) the records of the Department relating to an application made under this Act or under any enactment incorporating this Act by reference; and

  • (c) all material relating to an application referred to in paragraph (b).

• Marginal note:Persons who have right to inspect records, etc.

  (2) The persons who have the right to inspect conferred by subsection (1) are

  • (a) the applicant or a representative of the applicant;

  • (b) any medical adviser or other person, including any representative of a veterans’ organization incorporated by or under an Act of Parliament, who is consulted by the applicant or by a representative of the applicant;

  • (c) any member of the federal public administration whose duties require the inspection of those records or that material;

  • (d) the member of the forces or a representative of the member; and

  • (e) if the member of the forces is deceased,

    • (i) the survivor or surviving child of the member, or a representative of that survivor or child, and

    • (ii) any medical adviser or other person, including any representative of a veterans’ organization incorporated by or under an Act of Parliament, who is consulted by the survivor or surviving child of the member or by a representative of that survivor or child.

Marginal note:Information that shall be made available to Minister

109.1 The following personal information relating to a member of the forces shall, if requested by the Minister, be made available to the Minister for the purpose of determining or verifying the member’s service or medical history in order to determine eligibility for an award under this Act or a benefit under any enactment incorporating this Act by reference:

• (a) personal information collected or obtained by the Department of National Defence in the administration of the National Defence Act or the Queen’s Regulations and Orders for the Canadian Forces, or any predecessor enactment relating to the same subject-matter;

• (b) personal information collected or obtained by the Department of Transport in the administration of the Aeronautics Act or the Canada Shipping Act, or any predecessor enactment relating to the same subject-matter;

• (c) personal information collected or obtained by the Department of Indian Affairs and Northern Development in the administration of the Indian Act, or any predecessor enactment relating to the same subject-matter; and

• (d) personal information collected or obtained by the Library and Archives of Canada in the administration of the Library and Archives of Canada Act, or any predecessor enactment relating to the same subject-matter.

Marginal note:Information that Minister may disclose

109.2 Personal information that has been collected or obtained by the Minister in the administration of this Act, or any enactment incorporating this Act by reference, may be disclosed by the Minister

• (a) to any person or body, to the extent that the disclosure is necessary in order for the Minister to obtain from that person or body information that the Minister requires for the administration of this Act or any other enactment administered by the Minister;

• (b) to any officer or employee of the Department, to the extent that the disclosure is required for the administration of this Act or any other enactment administered by the Minister;

• (c) to any person or body, to the extent that the disclosure is required for the purpose of obtaining a payment due to Canada by

  • (i) the United Nations, or

  • (ii) another international organization or another country, pursuant to an international agreement;

• (d) to the Department of Human Resources and Skills Development, to the extent that the disclosure is required for the administration of the Old Age Security Act or the Canada Pension Plan; and

• (e) to the Correctional Service of Canada, to the extent that the disclosure is required for the administration of the Corrections and Conditional Release Act.

Marginal note:Disclosure in legal proceedings

109.3 Notwithstanding any other Act or law, no member of the federal public administration shall be required to disclose personal information that has been collected or obtained for the purpose of this Act, or any enactment incorporating this Act by reference, in any legal proceedings except

• (a) criminal proceedings; or

• (b) proceedings on a review, appeal, reconsideration or judicial review relating to an application made under this Act or any enactment incorporating this Act by reference.

Marginal note:Social Insurance Numbers

109.4 If a Social Insurance Number has been used to identify the service or medical records of a member of the forces, the minister or other authority having custody of those records and the Minister may use the Social Insurance Number for the purpose of making available those records.

Marginal note:Immunity

110 No action or other proceeding lies against any person by reason of anything done or said in good faith in any proceedings before the Minister or in any report of any examination made for the purposes of this Act by any person employed in the Department or by any other person at the request of the Minister.

Definition of action

• 111 (1) In this section, action means any action or other proceeding brought by or on behalf of

  • (a) a member of the forces,

  • (b) a person to whom this Act applies by virtue of any enactment incorporating this Act by reference, or

  • (c) a survivor or a surviving child, parent, brother or sister of a person referred to in paragraph (a) or (b) who is deceased

  against Her Majesty, or against any officer, servant or agent of Her Majesty, in which damages are claimed in respect of an injury or disease or aggravation thereof resulting in disability or death.

• Marginal note:Stay of action against Crown until pension refused

  (2) An action that is not barred by virtue of section 9 of the Crown Liability and Proceedings Act shall, on application, be stayed until

  • (a) an application for a pension in respect of the same disability or death has been made and pursued in good faith by or on behalf of the person by whom, or on whose behalf, the action was brought; and

  • (b) a decision to the effect that no pension may be paid to or in respect of that person in respect of the same disability or death has been confirmed by an appeal panel of the Veterans Review and Appeal Board in accordance with the Veterans Review and Appeal Board Act.