Division of Judges’ Annuity Benefits Regulations (SOR/2008-252)

Applications for Division of Annuity Benefits

Marginal note:To whom application is made

• 1 (1) Any application for the division of a judge’s annuity benefits between the judge and his or her spouse, former spouse or former common-law partner must be made to the annuity administrator.

• Marginal note:Annuity administrator

  (2) If the application relates to a judge of the Supreme Court of Canada, annuity administrator means the Registrar of the Supreme Court of Canada appointed under section 12 of the Supreme Court Act, and if it relates to a judge of any other superior court, annuity administrator means the Commissioner for Federal Judicial Affairs appointed under section 73 of the Judges Act (the “Act”).

• Marginal note:Information required

  (3) The application must contain the following information:

  • (a) in respect of the judge,

    • (i) the judge’s name,

    • (ii) the judge’s most recent address that is known to the applicant,

    • (iii) the judge’s date of birth,

    • (iv) the most recent judicial office held by the judge that is known to the applicant, and

    • (v) the date on which the judge ceased to hold office, if applicable, if that date is known to the applicant; and

  • (b) in respect of the spouse, former spouse or former common-law partner,

    • (i) the person’s name, and

    • (ii) the person’s most recent address that is known to the applicant.

• Marginal note:Documents required

  (4) The application must be accompanied by the following documents:

  • (a) if the interested parties are or were married to each other, the original or a certified true copy of the marriage certificate;

  • (b) the original or a certified true copy of the court order or agreement that provides for the division of the annuity benefits; and

  • (c) if the court order or agreement does not specify the period during which the interested parties cohabited, a statutory declaration by the applicant stating the date on which they began to cohabit and the date on which that cohabitation ceased.

Marginal note:Period during which interested parties cohabited

2 For the purpose of these Regulations, other than subsections 14(2) and (3), and paragraph 52.14(6)(b) of the Act, if the court order or agreement does not specify the period during which the interested parties cohabited, that period is determined on the basis of the documents referred to in subsection 1(4).

Marginal note:Court order or agreement not specific enough

3 If the terms of the court order or agreement do not permit the determination by the annuity administrator of the amount or the percentage of the judge’s annuity benefits that is to be paid to the spouse, former spouse or former common-law partner, the annuity administrator may not act on the application and must request the interested parties to have the necessary changes made to the order or to make the necessary changes to the agreement.

Marginal note:Living separate and apart

4 For the purpose of paragraph 52.11(2)(b) of the Act,

• (a) the interested parties are deemed to have lived separate and apart for any period during which they lived separate and apart and one of them manifested the intention not to continue the conjugal relationship;

• (b) a period during which the interested parties have lived separate and apart is not to be considered to have been interrupted or terminated for the sole reason

  • (i) that one of the interested parties has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the interested party’s own volition, or

  • (ii) that the interested parties have resumed cohabitation during a period of, or periods totalling, not more than 90 days with reconciliation as its primary purpose; and

• (c) if one of the interested parties dies during the year after the day on which the interested parties began to live separate and apart, the parties are deemed to have lived separate and apart throughout that year and that year is deemed to have elapsed at the date of death.

Marginal note:Person incapable of managing own affairs

• 5 (1) A person’s incapacity to manage his or her own affairs is a circumstance referred to in paragraph 52.22(c) of the Act in which a person may make an application or object to an application on behalf of another person, or may act on behalf of another person in proceeding with an application made by that other person.

• Marginal note:Document required

  (2) The person must submit to the annuity administrator the original or a certified true copy of the document that authorizes the person to act.

Marginal note:Application by personal representative or liquidator

• 6 (1) The fact that the terms of the court order or agreement have not been or are not being satisfied by other means is a circumstance referred to in paragraph 52.22(d) of the Act in which the personal representative or the liquidator of the succession of a judge or of a spouse, former spouse or former common-law partner of a judge may make an application or may proceed with an application that was made by or on behalf of the interested party.

• Marginal note:Objection to application by personal representative or liquidator

  (2) The existence of one of the grounds for objection referred to in subsection 52.12(2) of the Act is a circumstance referred to in paragraph 52.22(d) of the Act in which the personal representative or the liquidator of the succession of a judge or of a spouse, former spouse or former common-law partner of a judge may object to an application.

• Marginal note:Documents required

  (3) The personal representative or the liquidator of the succession must submit to the annuity administrator

  • (a) the original or a certified true copy of the document that authorizes that representative or liquidator to act in that capacity;

  • (b) the original or a certified true copy of the interested party’s death certificate; and

  • (c) evidence that the terms of the court order or agreement remain in effect or, if the ground for objecting to the application is that the court order or agreement has been varied or is of no force or effect, evidence of that fact.

Marginal note:Application after judge’s death

• 7 (1) The fact that the terms of the court order or agreement have not been or are not being satisfied by other means is a circumstance referred to in paragraph 52.22(f) of the Act in which a spouse, former spouse or former common-law partner of a judge may make an application after the judge’s death.

• Marginal note:Documents required

  (2) The application must be accompanied by the following documents:

  • (a) the original or a certified true copy of the judge’s death certificate; and

  • (b) if the application is based on a court order referred to in subparagraph 52.11(2)(b)(i) of the Act or on an agreement and the court order or agreement does not specify the date on which the interested parties began to live separate and apart before the judge’s death, a statutory declaration stating that date and the fact that the parties were still living separate and apart when the judge died and that the terms of the court order or agreement have not been or are not being satisfied by other means.

Marginal note:Notice of receipt of application

8 The notice of the receipt of an application referred to in subsection 52.11(3) of the Act that is sent to an interested party who is not the applicant must be accompanied by a copy of the court order or agreement and any marriage certificate, death certificate or statutory declaration that was submitted in support of the application.

Marginal note:Notice of objection

9 A notice of objection to the division of annuity benefits referred to in subsection 52.12(1) of the Act must be sent to the annuity administrator.

Marginal note:Notice of division

10 The notice of the division of annuity benefits referred to in subsection 52.14(9) of the Act must contain the following information:

• (a) the date on which the division was approved;

• (b) the valuation day, as determined in accordance with section 19;

• (c) the share of the annuity benefits referred to in subsection 52.14(1) of the Act, expressed as a percentage;

• (d) the proportion of the value of the annuity referred to in subsection 52.14(2) of the Act, expressed as a percentage;

• (e) an estimate of the amount to be paid to the spouse, former spouse or former common-law partner as payment of his or her share of the annuity benefits, made in accordance with sections 19 and 21 to 23, with any modifications that the circumstances require; and

• (f) if the judge still holds office, the judge’s expected date of retirement, determined in accordance with section 19 and paragraph 21(d), with any modifications that the circumstances require.

Marginal note:Election to wait for share of annuity benefits

• 11 (1) To make an election under subsection 52.14(4) of the Act, a judge’s spouse, former spouse or former common-law partner must send to the annuity administrator a notice indicating that person’s election to receive at the time described in that subsection a share of the annuity referred to in that subsection, to be paid in lieu of the share of the judge’s annuity benefits referred to in subsection 52.14(3) or (3.1) of the Act.

• Marginal note:Time for sending notice

  (2) The notice must be sent no later than the 30th day after the day on which the notice of the division of annuity benefits referred to in subsection 52.14(9) of the Act is sent.

• Marginal note:Cancellation of election

  (3) The spouse, former spouse or former common-law partner may, within the same period and in the same manner, cancel the election.

• Marginal note:Notice to judge

  (4) The annuity administrator must notify the judge of the election and cancellation.

Marginal note:Withdrawal of application

12 An application may be withdrawn by sending a notice to the annuity administrator no later than the 30th day after the day on which the notice of the division of annuity benefits referred to in subsection 52.14(9) of the Act is sent.

Provision of Information

Provision of Information to Spouse, Common-law Partner, Former Spouse or Former Common-law Partner

Marginal note:To whom request for information is made

• 13 (1) A request by a spouse, common-law partner, former spouse or former common-law partner of a judge under section 52.21 of the Act to obtain information concerning the benefits that are or may become payable to or in respect of the judge under the Act must be made to the annuity administrator.

• Marginal note:Documents required

  (2) The request must be accompanied by the following documents:

  • (a) if there is a court order or agreement, the original or a certified true copy of the court order or agreement, and if the appeal or review proceedings referred to in paragraph 52.12(2)(c) of the Act has been commenced in respect of the period during which the judge and the spouse, common-law partner, former spouse or former common-law partner cohabited, a statutory declaration by the spouse, common-law partner, former spouse or former common-law partner that meets the requirements set out in subsection (3); and

  • (b) if the court order or agreement does not specify the period during which the judge and the spouse, common-law partner, former spouse or former common-law partner cohabited or if there is no court order or agreement, a statutory declaration by the spouse, common-law partner, former spouse or former common-law partner that meets the requirements set out in subsection (3).

• Marginal note:Content of statutory declaration

  (3) The statutory declaration must state the date on which the judge and the spouse, common-law partner, former spouse or former common-law partner began to cohabit and the date on which they ceased to cohabit or, if they have not ceased to cohabit, that it is the intention of the spouse or common-law partner to cease to cohabit.

Marginal note:Information to be provided

• 14 (1) The information that the Minister is to provide in response to a request is the following:

  • (a) the date on which the information is prepared;

  • (b) the date on which the judge

    • (i) would be granted or paid an annuity under subsection 42(1) or (1.1) of the Act if he or she ceased to hold office,

    • (ii) would have been granted or paid an annuity under paragraph 42(1)(a), (b) or (c) or 42(1.1)(a) of the Act if he or she had ceased to hold office and had not been granted an earlier annuity under paragraph 42(1.1)(b) of the Act, or

    • (iii) was granted or paid an annuity under subsection 42(1) or (1.1) or section 43.1 of the Act;

  • (c) the period subject to division;

  • (d) if, on the date on which the information is prepared, the judge would not be granted or paid an annuity if he or she ceased to hold office or if, on valuation day, as determined in accordance with section 19, the judge would not have been granted or paid an annuity if he or she had ceased to hold office, the amount of contributions made by him or her under section 50 of the Act during the period subject to division and the interest on the contributions calculated under subsection 51(4) of the Act;

  • (e) an estimate of the amount of the annuity that the judge would be granted or paid if he or she ceased to hold office on the last day of the period subject to division or that he or she would have been granted or paid if he or she had ceased to hold office on valuation day, as determined in accordance with section 19; and

  • (f) an estimate of the share of annuity benefits that would be determined in accordance with subsection 52.14(1) of the Act on valuation day, as determined in accordance with section 19.

• Marginal note:Period during which interested parties cohabited

  (2) For the determination of the period subject to division referred to in paragraph (1)(c), if no division of annuity benefits between the interested parties has been approved by the Minister and if the period during which the interested parties cohabited is not specified in a court order or agreement, the period during which the interested parties cohabited begins and ends on the dates stated in the statutory declaration referred to in subsection 13(3). If the judge and the spouse, former spouse or common-law partner have not ceased to cohabit, the period ends on the last day of the month before the month in which the request is made.

• Marginal note:Approval of division of annuity benefits

  (3) If a division of annuity benefits between the interested parties has been approved by the Minister, the period during which the interested parties cohabited is the period that was determined for the purposes of the division.