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

Marginal note:Prohibition

30 No employee shall be dismissed, suspended or laid off solely on the ground that garnishment proceedings permitted by this Part may be or have been taken with respect to that employee.

PART IIDiversion of Pension Benefits to Satisfy Financial Support Orders

Application of Part

Marginal note:Application

31 This Part applies only in respect of the enforcement of financial support orders against pension benefits that are payable under the enactments listed in the schedule.

Interpretation

Marginal note:Definitions

• 32 (1) In this Part,

  applicant

  applicant means a person by or on behalf of whom an application is made to the Minister for a diversion of a pension benefit under this Part; (requérant)

  application

  application[Repealed, 2019, c. 16, s. 105]

  financial support order

  financial support order means, subject to subsection (2), an order, judgment, decision or agreement for maintenance, alimony or support — whether interim or final — that is enforceable in a province; (ordonnance de soutien financier)

  Her Majesty

  Her Majesty means Her Majesty in right of Canada; (Sa Majesté)

  Minister

  Minister means the Minister or Ministers designated under section 40.2; (ministre)

  net pension benefit

  net pension benefit means a pension benefit minus the prescribed deductions; (prestation nette de pension)

  pension benefit

  pension benefit means

  • (a) any of the following benefits payable under an enactment that is listed in the schedule:

    • (i) a pension,

    • (ii) an annual allowance,

    • (iii) an annuity,

    • (iv) a lump sum return of pension contributions, including interest, if any,

    • (v) a gratuity,

    • (vi) a cash termination allowance,

    • (vii) a withdrawal allowance, including interest, if any,

    • (viii) a transfer value, or

    • (ix) a bridge benefit, and

  • (b) any benefit payable under the Supplementary Retirement Benefits Act or the Public Service Pension Adjustment Act, chapter P-33 of the Revised Statutes of Canada, 1970, in respect of a pension, annual allowance or annuity referred to in paragraph (a); (prestation de pension)

  prescribed

  prescribed means prescribed by regulation made under this Part; (prescrit ou réglementaire)

  provincial enforcement service

  provincial enforcement service has the same meaning as in section 2 of the Family Orders and Agreements Enforcement Assistance Act; (autorité provinciale)

  recipient

  recipient means

  • (a) in respect of a benefit referred to in any of subparagraphs (a)(i) to (vii) of the definition pension benefit, a child or other person to whom the benefit is immediately payable, but does not include a child or other person whose entitlement to the benefit is based on their status as a survivor of the person who was originally entitled to the benefit or would have been entitled to it had death not intervened, or

  • (b) in respect of a benefit referred to in subparagraph (a)(viii) or (ix) of the definition pension benefit, a person who is entitled to the benefit. (prestataire)

• Marginal note:Financial support order

  (2) For the purposes of this Part, the Minister shall disregard a component of a financial support order the dollar value of which cannot be readily ascertained from the financial support order itself or from the Minister’s records relating to the recipient’s pension benefit.

• Marginal note:Interpretation of the provincial law

  (3) With respect to the expression “the law of that province” in paragraphs 36(c) and (e), where the law of the province refers to the percentage or the maximum percentage of a pension that is to be or may be garnisheed, attached or diverted, the reference to “pension”, or equivalent expression, in the law of the province shall be construed, for the purpose of this Part, to mean “net pension benefit” as defined in this section.

• Marginal note:Interpretation of financial support orders

  (4) Where a financial support order is expressed in terms of a percentage of a recipient’s pension, the reference to “pension”, or equivalent expression, in the financial support order shall be construed, for the purpose of this Part, to mean “net pension benefit” as defined in this section.

Conditions for Diversion of Pension Benefits

Marginal note:Application for diversion

• 33 (1) Subject to this Part and the regulations, a person named in a financial support order may make an application to the Minister for diversion of a pension benefit payable to a recipient if

  • (a) the order is valid and subsisting; and

  • (b) the person against whom the order has been made is a recipient.

• Marginal note:Representation

  (2) The application may be made, in accordance with the regulations, on behalf of a person by any other person or by a provincial enforcement service.

• Marginal note:Contents of application

  (2.1) The application must contain the prescribed information and be accompanied by the prescribed documents.

• Marginal note:Arrears of maintenance, alimony or support

  (2.2) A provincial enforcement service may, in respect of an application referred to in subsection (1), submit a document to the Minister that sets out a recipient’s arrears of maintenance, alimony or support and any prescribed information.

• Marginal note:Diversion of pension benefits

  (3) The Minister shall, not later than the first day of the fourth month after the month in which the Minister receives the duly completed application, divert an amount or amounts computed in accordance with sections 36 to 40 and the regulations from any net pension benefit that is payable to the recipient named in the application, and any amount so diverted shall be paid, subject to subsection (4), to the applicant, to any other person designated for that purpose in the financial support order or to a provincial enforcement service if the law of the province permits payment to it.

• Marginal note:Where applicant under 18 years of age

  (4) Where, pursuant to this section, a diverted amount is to be paid to an applicant who is under eighteen years of age, payment thereof shall instead be made to the person having the custody and control of that applicant or, where there is no person having custody and control of that applicant, to such person as the Minister may direct.

Marginal note:Minister to notify recipient where a diversion is to be made

• 34 (1) Forthwith after receiving a duly completed application, the Minister shall cause a written notification, containing the prescribed information, to be sent in prescribed manner to the recipient named in the application, at the recipient’s latest known address, advising that an application for diversion of the recipient’s pension benefit has been received and that a diversion will be made in accordance with this Part.

• Marginal note:Recipient deemed to have received notification

  (2) The notification required under subsection (1) shall be deemed to have been received by the recipient one month after it has been sent to the recipient.

Marginal note:Conditions for diversion of pension benefits

35 No diversion of pension benefits under this Part shall be made unless the amount to be diverted is at least

• (a) twenty-five dollars per annum, in the case of periodic diversion payments; or

• (b) twenty-five dollars, in the case of a lump sum diversion payment.

Marginal note:Where pension benefit not immediately payable — Public Service Superannuation Act

• 35.1 (1) Where a person against whom there is a valid and subsisting financial support order

  • (a) has ceased to be employed in the public service,

  • (b) is not a recipient but has exercised an option for a deferred annuity under any of sections 12 to 13.001 of the Public Service Superannuation Act or is entitled to do so, and

  • (c) has reached 50 years of age but has not yet reached 60 years of age, if the person has exercised an option under section 12 or 13 of the Public Service Superannuation Act or is entitled to do so, or has reached 55 years of age but has not yet reached 65 years of age, if the person has exercised an option under section 12.1 or 13.001 of that Act or is entitled to do so,

  a person entitled to support under the financial support order may apply for an order under subsection (2) to any court in Canada that has jurisdiction to make a financial support order.

• Marginal note:Pension benefit not immediately payable — Canadian Forces

  (1.1) A person who is entitled to support under a valid and subsisting financial support order may apply for an order under subsection (2) to any court in Canada that has jurisdiction to make a financial support order if the person against whom the financial support order is made

  • (a) has ceased to be required to make contributions under section 5 of the Canadian Forces Superannuation Act or has ceased to be a participant under subsection 5(1) of the Reserve Force Pension Plan Regulations;

  • (b) is not a recipient and is entitled to a deferred annuity under section 17 of the Canadian Forces Superannuation Act or subsection 44(1) of the Reserve Force Pension Plan Regulations; and

  • (c) has reached 50 years of age but has not yet reached 60 years of age.

• Marginal note:Order

  (2) A court to which an application is made under subsection (1) or (1.1) may make an order deeming the person against whom there is a valid and subsisting financial support order to have exercised an option under any of sections 12 to 13.001 of the Public Service Superannuation Act, section 18 of the Canadian Forces Superannuation Act or section 45 of the Reserve Force Pension Plan Regulations in favour of an annual allowance payable as of the date of the making of the order under this subsection if the court is satisfied that

  • (a) there is an extended pattern of non-payment of the financial support order; and

  • (b) the person making the application has taken reasonable steps to enforce the financial support order through other means.

Marginal note:Effect of order

35.2 An order made under subsection 35.1(2) shall be deemed for all purposes to have the same effect as if the person to whom the order relates had exercised the option referred to in the order.

Marginal note:Provision of information

35.3 On application by a person who is entitled to support under a valid and subsisting financial support order, the Minister shall, in accordance with the regulations, provide the person with the prescribed information concerning any matter related to the making of an application under section 35.1.

Marginal note:Representation

35.4 An application under section 35.1 or 35.3 may be made on behalf of a person by any other person or by a provincial enforcement service.

Amount of Diversion

Marginal note:Rules governing amount of diversion

36 Where

• (a) a financial support order provides only for periodic payments and the recipient’s pension benefit consists only of periodic payments, or

• (b) a financial support order provides only for a lump sum payment and the recipient’s pension benefit consists only of a lump sum payment,

the amount to be diverted from the recipient’s net pension benefit shall be governed by the following rules:

• (c) if the recipient is domiciled in Canada and habitually resident in a province in which there is in force a law of general application permitting garnishment, attachment or diversion of pensions for the enforcement of financial support orders, the amount to be diverted shall be determined in accordance with the law of that province in force at the time of the diversion payment,

• (d) if the recipient is domiciled in Canada and habitually resident elsewhere than in a province described in paragraph (c), the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% of the recipient’s net pension benefit,

• (e) if the recipient is domiciled outside Canada and the applicant is habitually resident in a province described in paragraph (c), the amount to be diverted shall be determined in accordance with the law of that province in force at the time of the diversion payment,

• (f) if the recipient is domiciled outside Canada and the applicant is habitually resident in a province other than one described in paragraph (c), the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% of the recipient’s net pension benefit, or

• (g) if the recipient and the applicant are domiciled outside Canada and are habitually resident outside Canada, the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% of the recipient’s net pension benefit.