Judges Act (Removal Allowance) Order (C.R.C., c. 984)

1 [Repealed, SI/2003-143, s. 2]

Interpretation

2 In this Order,

Act

Act means the Judges Act; (loi)

financial institution

financial institution means any bank to which the Bank Act or the Quebec Savings Banks Act applies and any institution incorporated in Canada that accepts deposits of money from its members or the public and makes loans and includes a branch, agency or office of any such bank or institution; (institution financière)

former residence

former residence of a judge means the residence that a judge had immediately before that judge was required to change the judge’s place of residence to assume or perform the functions or duties of a judge, or, in the case of the judge’s retirement, resignation or death, the residence at the place or in the area where the judge was required to reside to assume or perform the judge’s function or duties as a judge; (ancienne résidence)

new residence

new residence of a judge means the residence

• (a) at the place or in the area where the judge is required to reside to assume or perform the judge’s functions and duties as a judge, or

• (b) to which

  • (i) the judge moves during one of the two-year periods referred to in paragraphs 40(1)(c) and (e) of the Act, or

  • (ii) the judge’s survivor or child moves within two years after the judge’s death. (nouvelle résidence)

Prescribed Kinds of Expenses

• 3 (1) For the purpose of subsection 40(2) of the Act, the following expenses are hereby prescribed to be the kinds of moving and other expenses for which a removal allowance shall be paid under section 40 of the Act:

  • (a) travelling costs, including amounts expended for meals and lodging, incurred in the course of moving the judge, a member of the judge’s household, or the judge’s survivor or child, from the former residence to the new residence;

  • (b) costs incurred in transporting or storing household effects of the judge, a member of the judge’s household, or the judge’s survivor or child in the course of moving from the former residence to the new residence;

  • (c) amounts expended for meals and lodging for a member of the judge’s household or the judge’s survivor or child during any temporary stay near the former residence or the new residence, not exceeding in the aggregate 30 days, or such longer period the Minister of Justice determines, taking into account market conditions and the special needs of the family;

  • (d) the cost of cancelling any lease of the former residence;

  • (e) the selling costs incurred in respect of the sale of the former residence;

  • (f) the cost of legal services in respect of the purchase of the new residence and of any taxes imposed on the transfer or registration of title to the new residence;

  • (g) child-care expenses incurred while the judge and the judge’s spouse or common-law partner, or the judge’s survivor are away looking for a new residence;

  • (h) where the interest charges on the mortgage for the new residence are higher than the interest charges on the mortgage for the former residence, the difference between those charges up to a maximum of $5,000 per year for a maximum of five years;

  • (i) the cost of a mortgage default insurance premium and of an insurance processing fee where

    • (i) the judge, the judge’s spouse or common-law partner, or the judge and the judge’s spouse or common-law partner, or the survivor or child, or the estate or succession of the judge owned the former residence,

    • (ii) the equity of the judge, the judge’s spouse or common-law partner, or the judge and the judge’s spouse or common-law partner, or the survivor or child, or the estate or succession on their behalf, in the former residence is transferred to the new residence,

    • (iii) the equity of the judge, the judge’s spouse or common-law partner, or the judge and the judge’s spouse or common-law partner, or the survivor in the new residence is less than 25 per cent of the cost of the new residence, and

    • (iv) the premium is levied in one payment;

  • (j) the cost to the judge or the judge’s spouse, common-law partner, survivor or child of maintaining the former residence, minus any rent received in respect of it, for a period of not more than six months after the date the judge vacates the residence, including amounts expended for mortgage interest payments, insurance, property taxes and heating; and

  • (k) where a judge is required to move to a new place of residence on appointment or transfer, the travelling and lodging costs, including amounts expended for meals, incurred by the judge before the establishment of the permanent new residence or in order to visit from time to time members of the judge’s household still resident in the former residence, within the six-month period after the judge’s appointment or transfer.

• (2) Where, on account of unfavourable conditions in the real estate market, the judge’s former residence cannot be sold within the six month period referred to in paragraph (1)(j) or (k), the Governor in Council may prescribe such an additional period as is reasonable in the circumstances.

• (3) For greater certainty, the travelling costs referred to in paragraph (1)(a) do not include those incurred by the judge after the establishment of the judge in the new residence during one of the periods referred to in subparagraph (b)(i) of the definition new residence in section 2 or those incurred by the judge in order to visit from time to time members of the judge’s household during one of those periods.

Interest on Loans

• 3.1 (1) For the purpose of subsection 40(2) of the Act, where a judge or a judge’s survivor or child is entitled to a removal allowance under section 40 of the Act, the interest on any short term demand loan with a financial institution to purchase a new residence and any legal fees related to that loan are hereby prescribed to be an expense for which a removal allowance shall be paid, if the loan has been arranged by

  • (a) the judge;

  • (b) the judge and the judge’s spouse or common-law partner;

  • (c) the judge’s spouse or common-law partner; or

  • (d) in the case where the judge is deceased, the judge’s survivor or child.

• (2) No removal allowance shall be paid pursuant to subsection (1) unless

  • (a) at the time the loan referred to in subsection (1) is arranged, the judge or the judge’s spouse, common-law partner, survivor or child, or the estate or succession of the judge, is the owner of the former residence or the judge is an owner with the judge’s spouse or common-law partner of the former residence;

  • (b) the former residence has been offered for sale; and

  • (c) the judge provides the Minister of Justice with receipts or other documents evidencing

    • (i) the purchase by the judge, the judge’s spouse, common-law partner, survivor or child of a new residence or the joint purchase by the judge and the judge’s spouse or common-law partner of a new residence, and

    • (ii) the terms and conditions of the loan.

• (3) The amount of the loan referred to in subsection (1) shall not exceed the amount that is equal to the price at which the former residence is listed for sale minus any amount owing in respect of a mortgage or other encumbrance on the residence.

• (4) Subject to subsection (5), no removal allowance shall be paid pursuant to subsection (1) in respect of any interest that accrues

  • (a) after 10 days have elapsed following the day on which the transaction for the sale of the former residence is completed, or

  • (b) after six months have elapsed from the day on which the loan was made,

  whichever is the earlier.

• (5) Where, on account of unfavourable conditions in the real estate market, a judge or a judge’s survivor or child who is entitled to a removal allowance under section 40 of the Act has not been able to sell the former residence within the six-month period referred to in paragraph (4)(b), the Governor in Council may prescribe any additional period that is reasonable in the circumstances in respect of which a removal allowance shall be paid pursuant to subsection (1).

Home Sale Assistance

• 3.2 (1) For the purposes of this section,

  appraisal report

  appraisal report means the form entitled Appraisal Report Home Ownership Units that is used by the Appraisal Institute of Canada and that is on file with the Minister of Justice; (rapport d’évaluation)

  appraiser

  appraiser means a person who is a member in good standing of

  • (a) the Appraisal Institute of Canada or of an institute or society of appraisers that has entered into an agreement with the Appraisal Institute of Canada permitting the use by that institute’s or society’s members of the designation “Accredited Appraiser Canadian Institute” and, in either case, who holds the designation of “Accredited Appraiser Canadian Institute”, or

  • (b) La Corporation professionnelle des évaluateurs agréés du Québec and who holds the designation of évaluateur agréé. (évaluateur)

• (2) For the purposes of subsection 40(2) of the Act, and subject to this section, where a judge or a judge’s spouse or common-law partner, survivor or child, or the estate or succession on their behalf, is unable to sell the judge’s former residence at a price that is equal to or greater than the fair market value, determined in accordance with this section, the difference between the sale price of the former residence and its fair market value is hereby prescribed to be an expense for which a removal allowance shall be paid under section 40 of the Act.

• (3) The removal allowance referred to in subsection (2) shall not be greater than 10 per cent of the fair market value of the former residence, determined in accordance with this section, and in no case shall the sum of the removal allowance and the sale price of the former residence be greater than the fair market value.

• (4) In order to determine the fair market value of the former residence, at the request of the person, estate or succession referred to in subsection (2), two appraisers shall be appointed, one by that person or that estate or succession, and one by the Minister of Justice, each to carry out a market appraisal to submit to the Minister and to that person or estate or succession an appraisal report of the former residence.

• (5) Where the difference between the market appraisals carried out pursuant to subsection (4) is

  • (a) less than or equal to five per cent of the higher market appraisal, the fair market value shall be the average of the two market appraisals, and

  • (b) more than five per cent of the higher market appraisal, another appraiser shall be appointed by the Minister of Justice to carry out a third market appraisal and to submit to the Minister of Justice and to the person, estate or succession referred to in subsection (2) an appraisal report of the former residence.

• (6) Where the difference between the third market appraisal carried out pursuant to paragraph 5(b) and the first two appraisals is

  • (a) less than or equal to five per cent of one of the first two market appraisals, which percentage is based on the higher of the market appraisals being compared at a time, the fair market value of the former residence shall be the average of the two market appraisals that are within five per cent of each other,

  • (b) less than or equal to five per cent of each of the first two appraisals, which percentage is based on the higher of the market appraisals being compared at a time, the fair market value of the former residence shall be the average of all of the market appraisals carried out, and

  • (c) more than five per cent of each of the first two market appraisals, which percentage is based on the higher of the two appraisals being compared at a time, the fair market value of the former residence shall be the average or median, whichever is the greater, of all of the market appraisals carried out.

• (7) When the fair market value of the former residence has been determined in accordance with this section, the Minister of Justice shall, in writing, advise thereof the person, estate or succession referred to in subsection (2).

• (8) No removal allowance shall be paid to a person, estate or succession referred to in subsection (2) where the former residence is not sold within six months after the day on which they receive written notice from the Minister of Justice advising of the fair market value of the former residence.

• (9) Where, on account of unfavourable conditions in the real estate market, a person, estate or succession referred to in subsection (2) who is entitled to a removal allowance under section 40 of the Act has not been able to sell the former residence within the six-month period referred to in subsection (8), the Governor in Council may prescribe such additional period as is reasonable in the circumstances in respect of which they may sell the former residence and be eligible to receive a removal allowance pursuant to subsection (2).

Terms and Conditions of Allowance Payments

4 A judge, judge’s survivor or child who makes a claim for the payment of a removal allowance under section 40 of the Act shall provide the Minister of Justice with receipts evidencing the expenses in respect of which the claim is made and any other documents that the Minister may require to enable the Minister to authorize the payment of the claim under section 5.

5 The Minister of Justice shall authorize the payment of a claim for a removal allowance where the Minister receives the claim and is satisfied that the expenses in respect of which the claim is made

• (a) are the kinds of expenses prescribed by sections 3, 3.1 and 3.2,

• (b) have actually been incurred by the judge, a member of the judge’s household, or the judge’s survivor or child;

• (c) are reasonable in the circumstances, and

• (d) are not payable to the judge or the judge’s survivor or child under any provision of the Act except section 40.