Garnishment, Attachment and Pension Diversion Act

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Sections259

• 1Short title

  This Act may be cited as the Garnishment, Attachment and Pension Diversion Act.

• 2Definitions

  In this Part,

• 2[p2]

  debtor, in respect of a garnishee summons, means the person whose salary or remuneration is sought to be garnisheed; (débiteur)

• 2[p3]

  garnishment includes attachment; (Version anglaise seulement)

• 2[p4]

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

• 2[p5]

  Minister means the Minister or Ministers designated under section 48; (ministre)

• 2[p6]

  order means an agreement relating to maintenance, alimony or support, an order, a judgment or a decision — whether interim or final — that is enforceable in a province; (ordonnance)

• 2[p7]

  parliamentary entity means

• 2[p7](a)

  the Senate;

• 2[p7](b)

  the House of Commons;

• 2[p7](c)

  the Library of Parliament;

• 2[p7](d)

  the office of the Senate Ethics Officer;

• 2[p7](e)

  the office of the Conflict of Interest and Ethics Commissioner;

• 2[p7](f)

  the Parliamentary Protective Service; or

• 2[p7](g)

  the office of the Parliamentary Budget Officer; (entité parlementaire)

• 2[p15]

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

• 2[p16]

  provincial garnishment law means the law of general application of a province relating to garnishment that is in force at the time in question. (droit provincial en matière de saisie-arrêt)

• 3Garnishment permitted

  Despite any law preventing the garnishment of Her Majesty or a parliamentary entity, both may be garnisheed under this Part.

• 3.1Garnishment under Acts of Parliament

  For greater certainty, Her Majesty and parliamentary entities are bound by the law relating to garnishment provided under any Act of Parliament.

• 4Definitions

  In this Division,

• 4[p20]

  department has the meaning assigned by paragraphs (a), (a.1), (b) and (d) of the definition department in section 2 of the Financial Administration Act; (ministère)

• 4[p21]

  garnishee summons includes any document that is of a similar nature to a garnishee summons, including a court order and a document in respect of maintenance, alimony or support issued by a provincial enforcement service; (bref de saisie-arrêt)

• 4[p22]

  pay period means, in respect of any particular person, the period beginning on the day after the day that is the regular pay-day of the person and ending on the day that is their next regular pay-day; (période de paye)

• 4[p23]

  prescribed means prescribed by regulations made under this Division; (prescrit ou réglementaire)

• 4[p24]

  salary means excluding any amount deemed to be or to have been excluded from that person’s salary pursuant to regulations made under paragraph 12(b). (traitement)

• 4[p24](a)

  in the case of a judge or associate judge to whom the Judges Act applies, the salary payable under that Act, or

• 4[p24](b)

  in the case of any other person,

• 4[p24](b)(i)

  the basic pay payable to that person for the performance of the regular duties of a position or office, and

• 4[p24](b)(ii)

  any amount payable as allowances, special remuneration, payment for overtime or other compensation or as a gratuity,

• 5Garnishment of salaries, remuneration

  Her Majesty is, subject to this Division and any regulation made thereunder, bound by provincial garnishment law in respect of payable to judges and associate judges to whom the Judges Act applies, or payable to any other person, excluding corporations, on behalf of a department or by a Crown corporation prescribed under paragraph 12(c) for the purposes of this Division.

• 5(a)

  salaries, and

• 5(b)

  remuneration as fees, honoraria or other payments of like import, in respect of any office or position or in respect of the performance of any services

• 6Service binds Her Majesty
• 6(1)

  Subject to this Division, service on Her Majesty of a garnishee summons, together with a copy of the order against a debtor and an application in the prescribed form, binds Her Majesty 15 days after the day on which those documents are served.

• 6(2)When service is effective

  A garnishee summons served on Her Majesty is of no effect unless it is served on Her Majesty in the first 45 days following the first day on which it could have been validly served on Her Majesty.

• 6(3)Her Majesty no longer bound

  The garnishee summons ceases to bind Her Majesty after the periods and in the circumstances specified in the regulations.

• 7Where documents must be served on Her Majesty
• 7(1)

  Service of documents on Her Majesty in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.

• 7(2)Method of service on Her Majesty

  In addition to any method of service permitted by the law of a province, service of documents on Her Majesty under subsection (1) may be effected by any prescribed method.

• 7(3)Repealed

  [Repealed, 2019, c. 16, s. 86]

• 8Moneys bound by service of garnishee summons

  For the purposes of garnishment proceedings permitted by this Division, service of a garnishee summons binds Her Majesty in respect of the following money to be paid by Her Majesty to the debtor named in the garnishee summons:

• 8(a)

  in the case of a salary,

• 8(a)(i)

  the salary to be paid, no later than the last day of the second pay period following the pay period in which Her Majesty is bound by the garnishee summons, and

• 8(a)(ii)

  where the garnishee summons has continuing effect under the law of the province, the salary to be paid on the last day of each subsequent pay period; or

• 8(b)

  in the case of remuneration described in paragraph 5(b),

• 8(b)(i)

  the remuneration payable, in respect of the department or Crown corporation named in the application referred to in section 6, on the fifteenth day following the day on which Her Majesty is bound by the garnishee summons, and

• 8(b)(ii)

  either

• 8(b)(ii)(A)

  any remuneration becoming payable in respect of that department or Crown corporation in the thirty days following the fifteenth day after the day on which Her Majesty is bound by the garnishee summons that is owing on that fifteenth day or that becomes owing in the fourteen days following that fifteenth day, or

• 8(b)(ii)(B)

  where the garnishee summons has continuing effect under the law of the province, any remuneration becoming payable in respect of that department or Crown corporation subsequent to the fifteenth day after the day on which Her Majesty is bound by the garnishee summons.

• 9Repealed

  [Repealed, 1997, c. 1, s. 26]

• 10Time period for Her Majesty’s response to a garnishee summons

  Her Majesty has the following time period within which to respond to a garnishee summons:

• 10(a)

  in the case of a salary, fifteen days, or such lesser number of days as is prescribed, after the last day of the second pay period next following the pay period in which Her Majesty is bound by the garnishee summons; or

• 10(b)

  in the case of remuneration described in paragraph 5(b), fifteen days, or such lesser number of days as is prescribed, after the day on which the remuneration is garnisheed.

• 11Methods of response
• 11(1)

  In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, Her Majesty may respond to a garnishee summons by any prescribed method.

• 11(2)Where response is by registered mail

  Where Her Majesty responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that Her Majesty has responded to the garnishee summons.

• 11(3)Effect of payment into court

  A payment into court by Her Majesty is a good and sufficient discharge of Her Majesty’s liability, to the extent of the payment.

• 11(3.1)Effect of payment to provincial enforcement service

  If provincial garnishment law permits a payment to a provincial enforcement service of the province, a payment to the provincial enforcement service by Her Majesty is a good and sufficient discharge of Her Majesty’s liability, to the extent of the payment.

• 11(4)Recovery

  If, in honouring a garnishee summons, Her Majesty, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that Her Majesty should have paid to that debtor, the excess is a debt due to Her Majesty by that debtor and may be recovered from the debtor by way of deduction from, or set-off or compensation against, future moneys payable to the debtor as salary or remuneration.

• 11(5)Recovery from party who instituted proceedings

  If moneys are paid by Her Majesty to or for the benefit of a party who instituted garnishment proceedings permitted by this Division in excess of the amount that should be paid to or for the benefit of that party, the excess is a debt due to Her Majesty by that party and may be recovered from the party by way of deduction from, or set-off or compensation against, moneys payable to or for the benefit of that party under this Division.

• 12Regulations

  The Governor in Council may, on the recommendation of the Minister, make regulations

• 12(a)

  specifying the place where service of documents on Her Majesty must be effected in connection with garnishment proceedings permitted by this Division;

• 12(a.1)

  respecting methods of service of documents and providing for the day on which service of documents on Her Majesty is deemed to be effected;

• 12(b)

  deeming, for the purposes of the definition salary in section 4, any amount to be or to have been excluded from a person’s salary;

• 12(b.1)

  specifying periods and circumstances for the purpose of subsection 6(3);

• 12(c)

  prescribing Crown corporations for the purposes of this Division; and

• 12(d)

  prescribing any other matters that are by this Division to be prescribed.

• 13Information to be made available to public

  The Minister shall cause information on the manner of commencing garnishment proceedings permitted by this Division to be made available throughout Canada in such a manner that the public will have reasonable access thereto.

• 14Crown corporations
• 14(1)

  Subject to subsection (2), in respect of moneys payable by Crown corporations not prescribed under paragraph 12(c) for the purposes of Division I, Her Majesty is bound by provincial garnishment law.

• 14(2)Idem

  In respect of Crown corporations to which subsection (1) applies that are prescribed under subsection (3) for the purposes of this subsection, Her Majesty is not bound by provincial garnishment law in relation to a “pension benefit” as defined in Part II.

• 14(3)Regulations

  The Governor in Council may, on the recommendation of the Minister, make regulations prescribing Crown corporations for the purposes of subsection (2).

• 15Canadian Forces

  In respect of pay and allowances payable to members of the Canadian Forces, Her Majesty is bound by provincial garnishment law to the extent, in the manner, and subject to the terms and conditions that may be provided by or under regulations made under the National Defence Act.

• 16Definitions

  In this Division,

• 16[p74]

  garnishee summons includes any document that is of a similar nature to a garnishee summons, including a court order and a document in respect of maintenance, alimony or support issued by a provincial enforcement service; (bref de saisie-arrêt)

• 16[p75]

  pay period means, in respect of any particular person, the period beginning on the day after the day that is the regular pay-day of the person and ending on the day that is their next regular pay-day; (période de paye)

• 16[p76]

  prescribed means prescribed by regulations made under this Division; (prescrit ou réglementaire)

• 16[p77]

  salary means excluding any amount deemed to be or to have been excluded from that person’s salary pursuant to regulations made under paragraph 24(b). (traitement)

• 16[p77](a)

  in the case of a member of the Senate or House of Commons, all moneys payable under the Parliament of Canada Act, the Salaries Act and any appropriation Act, other than moneys not included in computing the member’s income for the purposes of Part I of the Income Tax Act, or

• 16[p77](b)

  in the case of the staff of a parliamentary entity or the staff of members of the Senate or House of Commons, or in the case of any other person paid out of moneys appropriated by Parliament for use by a parliamentary entity,

• 16[p77](b)(i)

  the basic pay payable to a person for the performance of the regular duties of a position or office, and

• 16[p77](b)(ii)

  any amount payable as allowances, special remuneration, payment for overtime or other compensation or as a gratuity,

• 17Garnishment of salaries, remuneration

  Each parliamentary entity is, subject to this Division and any regulation made under it, bound by provincial garnishment law in respect of

• 17(a)

  salaries; and

• 17(b)

  remuneration to persons, excluding corporations, as fees, honoraria or other payments of like import, in respect of any office or position or in respect of the performance of any services.

• 18Service binding
• 18(1)

  Subject to this Division, service on a parliamentary entity of a garnishee summons, together with a copy of the order against a debtor and an application in the prescribed form, binds the parliamentary entity, 15 days after the day on which those documents are served.

• 18(2)When service is effective

  A garnishee summons served on the parliamentary entity is of no effect unless it is served in the first 45 days following the first day on which it could have been validly served.

• 18(3)Parliamentary entity no longer bound

  The garnishee summons ceases to bind the parliamentary entity after the periods and in the circumstances specified in the regulations.

• 19Place of service
• 19(1)

  Service of documents on a parliamentary entity in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.

• 19(2)Method of service

  In addition to any method of service permitted by the law of a province, service of documents under subsection (1) may be effected by any prescribed method.

• 20Repealed

  [Repealed, 1997, c. 1, s. 30]

• 21Moneys bound by service of garnishee summons

  For the purposes of garnishment proceedings permitted by this Division, service of a garnishee summons is binding in respect of the following money to be paid to the debtor named in the garnishee summons:

• 21(a)

  in the case of a salary,

• 21(a)(i)

  the salary to be paid, no later than the last day of the second pay period following the pay period in which the parliamentary entity is bound by the garnishee summons, and

• 21(a)(ii)

  where the garnishee summons has continuing effect under the law of the province, the salary to be paid on the last day of each subsequent pay period; or

• 21(b)

  in the case of remuneration described in paragraph 17(b),

• 21(b)(i)

  the remuneration payable on the 15th day following the day on which the parliamentary entity is bound by the garnishee summons, and

• 21(b)(ii)

  either

• 21(b)(ii)(A)

  any remuneration becoming payable in the 30 days following the 15th day after the day on which the parliamentary entity is bound by the garnishee summons that is owing on that 15th day or that becomes owing in the 14 days following that 15th day, or

• 21(b)(ii)(B)

  if the garnishee summons has continuing effect under the law of the province, any remuneration becoming payable subsequent to the 15th day after the day on which the parliamentary entity is bound by the garnishee summons.

• 22Time period to respond to garnishee summons

  The parliamentary entity has the following time period within which to respond to a garnishee summons:

• 22(a)

  in the case of a salary, 15 days, or any lesser number of days that is prescribed, after the last day of the second pay period next following the pay period in which the parliamentary entity is bound by the garnishee summons; or

• 22(b)

  in the case of remuneration described in paragraph 17(b), fifteen days, or such lesser number of days as is prescribed, after the day on which the remuneration is garnisheed.

• 23Methods of response
• 23(1)

  In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, the parliamentary entity may respond to a garnishee summons by any prescribed method.

• 23(2)Response by registered mail

  If the parliamentary entity responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that the entity has responded to the garnishee summons.

• 23(3)Effect of payment into court

  A payment into court by the parliamentary entity is a good and sufficient discharge of its liability, to the extent of the payment.

• 23(3.1)Effect of payment to provincial enforcement service

  If provincial garnishment law permits a payment to a provincial enforcement service of the province, a payment to the provincial enforcement service by the parliamentary entity is a good and sufficient discharge of its liability, to the extent of the payment.

• 23(4)Recovery

  If, in honouring a garnishee summons, a parliamentary entity, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that it should have paid to that debtor, the excess is a debt due to the entity by that debtor and may be recovered from the debtor by way of deduction from, or set-off or compensation against, future moneys payable to the debtor as salary or remuneration.

• 23(5)Recovery from party who instituted proceedings

  If moneys are paid by a parliamentary entity to or for the benefit of a party who instituted garnishment proceedings permitted by this Division in excess of the amount that should be paid to or for the benefit of that party, the excess is a debt due to the entity by that party and may be recovered from the party by way of deduction from, or set-off or compensation against, moneys payable to or for the benefit of that party under this Division.

• 24Regulations

  The Governor in Council may, on the recommendation of the Minister, made after consultation between the Minister and the Speaker of the Senate and the Speaker of the House of Commons, make regulations

• 24(a)

  specifying the place where service of documents on the parliamentary entities must be effected in connection with garnishment proceedings permitted by this Division;

• 24(a.1)

  respecting methods of service of documents and providing for the day on which service of documents on the parliamentary entities is deemed to be effected;

• 24(b)

  deeming, for the purposes of the definition salary in section 16, any amount to be or to have been excluded from a person’s salary;

• 24(b.1)

  specifying periods and circumstances for the purpose of subsection 18(3); and

• 24(c)

  prescribing any other matters that are by this Division to be prescribed.

• 25Information to be made available to public

  The Speaker of the Senate and the Speaker of the House of Commons shall cause information on the manner of commencing garnishment proceedings permitted by this Division to be made available throughout Canada in such a manner that the public will have reasonable access thereto.

• 26No execution

  No execution shall issue on an order made against a parliamentary entity in garnishment proceedings permitted by this Part.

• 27Inconsistency between federal and provincial law

  In the event of any inconsistency between this Part, any other Act of Parliament or a regulation made under this Part or under any other Act of Parliament, and the provincial garnishment law, the provincial garnishment law is overridden to the extent of the inconsistency.

• 27.1Ranking of Her Majesty

  Her Majesty ranks in priority over the party that instituted the garnishment proceedings permitted under this Part with respect to any moneys that are payable to the debtor even though a garnishee summons in respect of those moneys has been served on Her Majesty or a parliamentary entity and the amount of the indebtedness may be recovered or retained in any manner authorized by law when a debtor is indebted

• 27.1(a)

  to Her Majesty; or

• 27.1(b)

  to Her Majesty in right of a province on account of taxes payable to any province and an agreement exists between Canada and the province under which Canada is authorized to collect the tax on the province’s behalf.

• 27.2Priority of garnishee summons

  Subject to section 27.1, in the application of this Part, a garnishee summons for a maintenance, alimony or support obligation shall be honoured before any other garnishee summons.

• 28No execution against Her Majesty

  No execution shall issue on an order made against Her Majesty in garnishment proceedings permitted by this Part.

• 29Regulations

  The Governor in Council may,

• 29(a)

  on the recommendation of the Minister, make regulations generally for carrying out the purposes and provisions of Divisions I, II and III; and

• 29(b)

  on the recommendation of the Minister, made after consultation between the Minister and the Speaker of the Senate and the Speaker of the House of Commons, make regulations generally for carrying out the purposes and provisions of Division IV.

• 30Prohibition

  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.

• 31Application

  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.

• 32Definitions
• 32(1)

  In this Part,

• 32(1)[p133]

  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)

• 32(1)[p134]Repealed

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

• 32(1)[p135]

  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)

• 32(1)[p136]

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

• 32(1)[p137]

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

• 32(1)[p138]

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

• 32(1)[p139]

  pension benefit means

• 32(1)[p139](a)

  any of the following benefits payable under an enactment that is listed in the schedule:

• 32(1)[p139](a)(i)

  a pension,

• 32(1)[p139](a)(ii)

  an annual allowance,

• 32(1)[p139](a)(iii)

  an annuity,

• 32(1)[p139](a)(iv)

  a lump sum return of pension contributions, including interest, if any,

• 32(1)[p139](a)(v)

  a gratuity,

• 32(1)[p139](a)(vi)

  a cash termination allowance,

• 32(1)[p139](a)(vii)

  a withdrawal allowance, including interest, if any,

• 32(1)[p139](a)(viii)

  a transfer value, or

• 32(1)[p139](a)(ix)

  a bridge benefit, and

• 32(1)[p139](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)

• 32(1)[p151]

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

• 32(1)[p152]

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

• 32(1)[p153]

  recipient means

• 32(1)[p153](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

• 32(1)[p153](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)

• 32(2)Financial support order

  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.

• 32(3)Interpretation of the provincial law

  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.

• 32(4)Interpretation of financial support orders

  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.

• 33Application 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

• 33(1)(a)

  the order is valid and subsisting; and

• 33(1)(b)

  the person against whom the order has been made is a recipient.

• 33(2)Representation

  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.

• 33(2.1)Contents of application

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

• 33(2.2)Arrears of maintenance, alimony or support

  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.

• 33(3)Diversion of pension benefits

  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.

• 33(4)Where applicant under 18 years of age

  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.

• 34Minister 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.

• 34(2)Recipient deemed to have received notification

  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.

• 35Conditions for diversion of pension benefits

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

• 35(a)

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

• 35(b)

  twenty-five dollars, in the case of a lump sum diversion payment.

• 35.1Where 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 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.

• 35.1(1)(a)

  has ceased to be employed in the public service,

• 35.1(1)(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

• 35.1(1)(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,

• 35.1(1.1)Pension benefit not immediately payable — Canadian Forces

  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

• 35.1(1.1)(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;

• 35.1(1.1)(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

• 35.1(1.1)(c)

  has reached 50 years of age but has not yet reached 60 years of age.

• 35.1(2)Order

  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

• 35.1(2)(a)

  there is an extended pattern of non-payment of the financial support order; and

• 35.1(2)(b)

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

• 35.2Effect of order

  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.

• 35.3Provision of information

  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.

• 35.4Representation

  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.

• 36Rules governing amount of diversion

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

• 36(a)

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

• 36(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,

• 36(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,

• 36(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,

• 36(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,

• 36(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

• 36(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.

• 37Lump sum financial support order vs. periodic pension benefit
• 37(1)

  Where a financial support order provides only for a lump sum payment and the recipient’s pension benefit consists only of periodic payments, no diversion shall be made, except as provided in subsection (2).

• 37(2)Circumstances in which diversion shall be made

  Where the Minister is of the opinion that it is impossible or impracticable for a financial support order described in subsection (1) to be varied to stipulate periodic payments and the Minister has so notified the applicant and the recipient, a diversion shall be made in the amount of fifty per cent of the recipient’s monthly net pension benefit, subject to subsection (3), until