1994 Legislative Session: 3rd Session, 35th Parliament
THIRD READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the
17th day of May, 1994
Ian D. Izard, Law Clerk.
HONOURABLE COLIN GABELMANN
ATTORNEY GENERAL
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 1 of the Family Relations Act, R.S.B.C. 1979, c. 121, is amended in paragraph (c) of the definition of "spouse" by adding "or 3.1" after "under Part 3".
2 Section 6 (1) is amended by striking out "Part 3 and sections 65.1, 68.1" and substituting "Parts 3 and 3.1 and sections 65.1".
3 Section 20 is amended by adding "or 3.1" after "Part 3".
4 Section 43 is amended
(a) in subsection (1) by striking out "Subject to this Part," and substituting "Subject to this Part and Part 3.1,", and
(b) in subsection (3) (a) by striking out "under this Part;" and substituting "under this Part or Part 3.1;".
5 Section 51 is amended
(a) by striking out "section 43" wherever it appears and substituting "section 43, Part 3.1", and
(b) by renumbering the section as section 51 (1) and by adding the following:
(2) If the division of a pension under Part 3.1 would be unfair having regard to the exclusion from division of the portion of a pension earned before the marriage and it is inconvenient to adjust the division by reapportioning entitlement to another asset, the Supreme Court, on application, may divide the excluded portion between the spouse and member into shares fixed by the court.
6 Section 52 (1) is amended by adding "or Part 3.1" after "proceedings under this Part" and by adding "or under Part 3.1," after "vesting of property under section 51,".
7 Section 53 is amended by adding "or Part 3.1" after "under this Part" wherever it appears.
8 The following Part is added:
Part 3.1 -- Division of Pension Entitlement
55.1 (1) In this Part "beneficiary" means a person, or the estate of a member, entitled under the terms of a plan to receive preretirement survivor benefits or postretirement survivor benefits on the death of the member;
"commuted value" means the value of a benefit determined in accordance with the Pension Benefits Standards Act;
"defined benefit plan" means a plan that is not a defined contribution plan or a hybrid plan;
"disability pension" means a benefit paid to a member under a plan as a consequence of a member's disability;
"extraprovincial plan" means a plan that is not a local plan;
"hybrid plan" means a plan under which
(a) some benefits, but not all of the benefits, are determined as if the plan were a defined contribution plan, and
(b) some benefits, but not all of the benefits, are determined by a defined benefit formula;
"limited member" means a person designated as a limited member of a local plan under section 55.3 (1);
"local plan" means one of the following:
(a) a plan that is established by the Province;
(b) a plan that must be registered under the Pension Benefits Standards Act;
(c) a plan that is subject to this Part
(i) by the terms of the plan,
(ii) by the operation of legislation that regulates the plan, or
(iii) by reason of a reciprocal agreement under the Pension Benefits Standards Act;
"matured pension", or "matured" with reference to a pension, means a pension under which benefits are being paid to a retired member or a beneficiary and includes a payment of a disability pension when the member reaches a prescribed age;
"pension" means a series of payments that continue for the life of a member, whether or not it is afterward continued to any other person;
"plan" means a plan, scheme or arrangement organized and administered to provide pensions for members;
"postretirement survivor benefit" means lump sum or periodic benefits paid by a plan to a beneficiary when a member dies after the pension matures;
"preretirement survivor benefit" means lump sum or periodic benefits paid by a plan to a beneficiary when a member dies before the pension matures;
"proportionate share" means a fraction calculated in accordance with the regulations, the agreement of the spouse and member under section 55.92 or a court order;
"retirement" or "retire" means the date a member commences to receive a pension under a plan, whether or not the receipt of benefits has been deferred;
"separate pension" means the share of a member's pension which is established in a separate account in favour of a spouse;
"transfer" means, when referring to the payment of a proportionate share of the commuted value of a pension to the credit of a spouse, a transfer made in accordance with the regulations.
(2) In this Part
(a) "administrator", "benefit", "defined contribution plan", "former member" and "member" have the same meaning as they have in section 1 (1) of the Pension Benefits Standards Act,
(b) "member" includes a former member, and
(c) "spouse" includes a former spouse of a member.
55.2 (1) Subject to subsection (2), if a spouse is entitled under Part 3 to an interest in a pension,
(a) the spouse's share of the pension, and
(b) the manner in which the spouse's entitlement in the pension is to be satisfied must be determined in accordance with this Part.
(2) This Part applies only if a spouse
(a) was entitled under Part 3 to an interest in a pension before the coming into force of this Part and on the day this Part comes into force there is no allocation of the pension by agreement between the spouse and the member or by court order, or
(b) becomes entitled under Part 3 to an interest in a pension after the coming into force of this Part.
(3) An agreement between a spouse and member, or a court order, which is silent on pension entitlement but which represents a final settlement and separation of the financial affairs of the spouse and member in recognition of the end of their marriage is, for the purposes of subsection (2) (a), an allocation of the entire pension to the member by agreement or court order but nothing in this subsection affects a court's jurisdiction under Part 3 to review such an agreement or order.
55.3 (1) If a pension to be divided is
(a) an unmatured pension in a local plan that is a defined benefit plan, or
(b) a matured pension in a local plan, a spouse may be designated a limited member of the local plan by delivering a notice in the prescribed form to the administrator.
(2) A limited member has the following rights:
(a) to receive from the plan direct payment of a separate pension or a proportionate share of benefits paid under the pension, as the case may be, as determined under this Part;
(b) to enforce rights against the plan and recover damages for losses suffered as a result of a breach of a duty owed by the plan to the limited member;
(c) except as modified by this Part, all of the rights of a member under the Pension Benefits Standards Act;
(d) such additional rights as are set out in this Part.
(3) Subject to an order of the Supreme Court, a designation of preretirement survivor benefits or postretirement survivor benefits under the member's pension in favour of a limited member may not be changed without the limited member's consent.
(4) Subsection (3) applies until the limited member ceases to be a limited member or becomes entitled to a separate pension.
(5) If the commuted value of the spouse's share in the pension is transferred under this Part to the credit of the spouse, the spouse ceases to be a limited member of the plan.
55.4 If a pension to be divided is in a local plan and has not matured and the plan is a defined contribution plan, a spouse, by delivering a notice in the prescribed form to the administrator, is entitled to have a prescribed portion of the member's account balance transferred from the plan in accordance with the regulations.
55.5 If a pension to be divided is in a local plan and has not matured and the plan is a defined benefit plan, a spouse, by delivering a notice in the prescribed form to the administrator,
(a) is entitled to have, before the member retires, a proportionate share of the commuted value of the pension transferred from the plan to the credit of the spouse at any time the member is eligible to retire, or
(b) is entitled to receive, when the member retires, a separate pension from the plan determined in accordance with the regulations.
55.6 (1) If a pension to be divided is in a local plan and has not matured and the plan is a hybrid plan,
(a) to the extent that the pension in the hybrid plan is based on, or the member may choose to have it based on, principles applicable to a defined contribution plan, the pension must be divided in accordance with this Part and the regulations as if it were in a defined contribution plan, and
(b) the remainder of the pension must be divided in accordance with this Part and the regulations as if the pension were in a defined benefit plan.
(2) If, in the circumstances, the method of division required under this Part and the regulations is inappropriate because of the terms of the plan, the Supreme Court may, despite the Pension Benefits Standards Act or any other Act purporting to limit the jurisdiction of a court to make an appropriate order respecting pension entitlement of the member and the spouse on marriage breakdown, direct an appropriate method of division of the pension and the order of the court is binding on the plan.
55.7 (1) If a pension to be divided is in a local plan and has matured, a spouse, by delivering a notice in the prescribed form under section 55.3 (1), is entitled to receive from the plan a proportionate share of benefits paid under the pension until
(a) the death of the spouse, or
(b) the termination of the pension, whichever occurs first.
(2) Despite subsection (1), a spouse who is a designated beneficiary of a postretirement survivor benefit under the pension is entitled to the whole of the postretirement survivor benefit.
(3) A local plan that pays a proportionate share of benefits to a spouse must make separate source deductions with respect to deductions required under the Income Tax Act (Canada) for the spouse's share and the member's share of the benefits.
(4) Despite section 55.2 (2), a spouse who, before this Part came into force, is entitled to receive from a member payment of a proportionate share of benefits paid under a matured pension, may, by delivering a notice in the prescribed form to the administrator, require the plan to administer the division in accordance with this section.
55.8 (1) If a pension to be divided is in an extraprovincial plan, a spouse is entitled to receive from the plan a proportionate share of benefits paid under the pension until
(a) the death of the spouse, or
(b) the termination of the pension, whichever occurs first, and the member is a trustee of the proportionate share of benefits for the spouse.
(2) Despite subsection (1), if no other spouse is entitled to receive a proportionate share of benefits paid under the pension, the spouse who is the designated beneficiary of a postretirement survivor benefit under the pension is entitled to the whole of the postretirement survivor benefit.
(3) Subject to subsection (4), subsection (1) does not apply if the plan, or legislation establishing or regulating the plan, provides an alternative method of satisfying the interest of the spouse in the pension.
(4) If, having regard to the principles that apply to pension division under this Part, the alternative method under subsection (3) would operate unfairly, the Supreme Court may order the spouse's share in the pension be satisfied under subsection (1).
55.9 (1) If a member dies before the limited member receives a share of the pension under section 55.5, the limited member is entitled to a proportionate share of any preretirement survivor benefit payable under the member's pension.
(2) If a member dies after the limited member receives a share of the pension under section 55.5, the limited member is entitled to no further share of the member's pension except to the extent that the member has designated the limited member to be a beneficiary of the pension.
(3) If a limited member dies before the member and before receiving a share of the pension under section 55.5, the plan must transfer to the credit of the limited member's estate a proportionate share of the commuted value of the pension.
55.91 If a limited member is entitled to a separate pension or a proportionate share of benefits paid under the pension, a plan may require the limited member to accept a transfer of the commuted value of the separate pension or of the proportionate share of the benefits, as the case may be, in the same manner that a plan can require a member to do so under section 40 (1) of the Pension Benefits Standards Act.
55.92 (1) A spouse may enter into a written agreement with a member respecting one or more of the following:
(a) if there has been no division of a pension between the member and spouse, an arrangement for sharing the pension which departs from the proportionate shares required under this Act provided that the share to the spouse leaves the member with at least half of
(i) the value the pension would have had, or
(ii) the periodic benefits that would have been paid under the pension on retirement;
(b) a waiver by the spouse of any right to or interest in a member's pension or any benefit under it;
(c) a waiver by the spouse of any right to or interest in a division of pension entitlement under the Canada Pension Plan;
(d) the satisfaction of the spouse's interest in the pension by the payment of compensation in money or money's worth by the member to the spouse.
(2) Despite section 55.2 (2), if
(a) a spouse became entitled under Part 3 to an interest in family assets before the coming into force of this Part,
(b) the pension is to be divided by having the member pay the spouse a proportionate share of benefits payable under the pension, and
(c) the member has not yet retired or the spouse is not yet receiving benefits, the spouse and member may agree to divide the pension in accordance with this Part and, in that case, a notice in the prescribed form issued under section 55.3 (1) is as valid as if entitlement to an interest in family assets arose after the coming into force of this Part.
(3) If the spouse and member agree, or the Supreme Court makes an order under section 52, that the member must pay compensation to the spouse in satisfaction of part or all of the spouse's interest in the pension, the compensation payment must be calculated in accordance with the regulations unless the spouse and member otherwise agree or the court otherwise orders.
(4) If the plan and a spouse enter into an agreement under which the spouse accepts from the plan compensation, or a transfer of a share of the pension, in satisfaction of the spouse's interest in any circumstances not specifically dealt with under this Part, the compensation payment or amount transferred must be calculated in accordance with the regulations unless the Supreme Court otherwise orders.
(5) If, for the purposes of this Part, a form of notice or waiver is prescribed by the regulations, the notice or waiver is of no effect unless it is in the prescribed form.
55.93 (1) The spouse and member are responsible for paying to the plan a prescribed amount to offset administrative costs incurred by the plan in satisfying the share of the spouse under this Part.
(2) A spouse or member who pays more than a half share of the administrative costs may recover from the other the additional amount paid.
55.94 (1) A limited member, or a spouse claiming an interest in a pension who has delivered to the plan a notice in the prescribed form, is entitled to receive from the administrator
(a) at the time of marriage breakdown, and
(b) on an annual basis, prescribed information in respect of the plan.
(2) Despite subsection (1), the Supreme Court may order that an administrator provide some or all of the information required by subsection (1) at any time.
55.95 If a spouse is entitled to a share of preretirement survivor benefits or postretirement survivor benefits paid to another person, the recipient holds them in trust for the spouse.
55.96 If under this Act a spouse or the spouse's estate receives a share of a member's pension directly from a plan, the interest in the pension of the member, or of any person claiming an interest through the member, must be adjusted in accordance with the regulations.
55.97 The Lieutenant Governor in Council may make regulations for the following purposes and respecting the following matters:
(a) the methods and assumptions to be followed for the valuation, division and transfer of a pension and benefits, or the calculation of any compensation payment or commuted value, at the end of a marriage;
(b) the procedures to be followed by a spouse, member and plan when dividing a pension or satisfying a spouse's entitlement to a pension;
(c) the kinds of information a plan must make available to a spouse or limited member about a plan or pension entitlement and when the information must be provided, and requiring that different information be provided at different times;
(d) the form, content and manner of giving any notice or waiver under this Part;
(e) the procedures to be followed for failing to give or failing to comply with a notice under this Part;
(f) the method of calculating the proportionate share of benefits under a plan;
(g) the method of calculating a compensation payment or a transfer of a share of a pension for the purposes of section 55.92 (4);
(h) the prescribing of any age requirement under this Part;
(i) the prescribing of the amount of any administrative cost.
9 Part 4 is amended
(a) in section 55.1 in the definition of "maintenance order" by striking out "sections 56 to 62." and substituting "sections 56.1 to 62.",
(b) by renumbering section 55.1 as section 56, and
(c) by renumbering section 56 as section 56.1.
10 Section 61 (1) is amended by striking out "liability under section 56," and substituting "liability under section 56.1,".
11 Section 61.2 (1) is amended by striking out "responsibility under section 56 (1)" and substituting "responsibility under section 56.1 (1)".
12 Section 74 (2) to (5) is repealed and the following substituted:
(2) Where a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(3) Subsection (2) applies in respect of
(a) a written agreement made after that subsection, as enacted by section 12 of the Family Relations Amendment Act, 1994, comes into force, and
(b) a written agreement made before that subsection, as enacted by section 12 of the Family Relations Amendment Act, 1994, comes into force, but only if a consent in the form prescribed by the Provincial Court (Family) Rules is filed with the agreement.
(4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this section may, at any time, be varied or rescinded
(a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or
(b) by the Provincial Court, on application and subject to sections 20 and 62.
(5) The filing of a written agreement under this section does not
(a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or
(b) prevent the agreement from being filed or enforced in the Supreme Court under section 74.1.
(5.1) Where a provision referred to in subsection (2) is contained in an agreement that was filed under this section before section 12 of the Family Relations Amendment Act, 1994, comes into force,
(a) the provision continues to be enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act, and
(b) subsection (4) of this section applies.
13 Section 74.1 (1) and (2) is repealed and the following substituted:
(1) Where a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse is filed in the Supreme Court in accordance with the Rules of Court, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(2) Subsection (1) applies in respect of
(a) a written agreement made after that subsection, as enacted by section 13 of the Family Relations Amendment Act, 1994, comes into force, and
(b) a written agreement made before that subsection, as enacted by section 13 of the Family Relations Amendment Act, 1994, comes into force, but only if a consent in the form prescribed by the Supreme Court Rules is filed with the agreement.
(2.1) The filing of a written agreement under this section does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under section 74.
(2.2) Where a provision referred to in subsection (1) is contained in an agreement that was filed under this section before section 13 of the Family Relations Amendment Act, 1994, comes into force, the provision continues to be enforceable under this Act or the Family Maintenance Enforcement Act as if the provision were contained in an order made under this Act.
14 Section 83 (7) and (8) is amended by striking out "section 74" (3) (b) or (c)," and substituting "section 74,".
15 For the purpose of section 55.94 (1) (b) of the Family Relations Act, as enacted by section 8 of this Act, on or before December 31, 1995, an administrator is not required to provide information that the spouse or limited member is entitled to receive under that section unless the spouse or limited member makes a written request to the administrator or unless the plan otherwise agrees to provide the information on an annual basis.
16 Section 63 (2) (b) of the Pension Benefits Standards Act, S.B.C. 1991, c. 15, is amended by adding the following subparagraph:
(ii.1) a division of pension entitlement under Part 3.1 of the Family Relations Act, .
17 Section 64 is repealed and the following substituted:
64 The entitlement of any person to receive a benefit under a pension plan is subject to
(a) entitlements arising under
(i) a separation agreement, or
(ii) an order made under Part 3 of the Family Relations Act, or a similar order of a court outside British Columbia enforceable in British Columbia, that affect the payment or distribution of a person's benefits, and
(b) entitlements arising under a division of pension under Part 3.1 of the Family Relations Act.
18 This Act comes into force by regulation of the Lieutenant Governor in Council.
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