Pension Act (R.S.C., 1985, c. P-6)

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.