O. Reg. 370/19: FAMILY LAW MATTERS

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ontario regulation 370/19

made under the

Pension Benefits Act

Made: November 6, 2019
Filed: November 8, 2019
Published on e-Laws: November 8, 2019
Printed in The Ontario Gazette: November 23, 2019

Amending O. Reg. 287/11

(FAMILY LAW MATTERS)

1. Ontario Regulation 287/11 is amended by adding the following heading before the heading to section 1:

Part I
General

2. Section 1 of the Regulation is amended by striking out “sections 67.1 to 67.6 of the Act” at the end and substituting “sections 67.1 to 67.9 of the Act”.

3. The Regulation is amended by adding the following heading before the heading to section 3:

Part II
Rules — Sections 67.2 to 67.6 of the Act

4. Section 23 of the Regulation is amended by adding “under subsection 67.2 (6) of the Act” at the end of the portion before paragraph 1.

5. Paragraph 1 of section 27 of the Regulation is amended by striking out “that is governed by Schedule 1.1 of the General Regulation” at the end.

6. Subsection 43 (1) of the Regulation is amended by striking out “sections 67.1 to 67.6 of the Act” in the portion before clause (a) and substituting “section 67.1 of the Act”.

7. Section 44 of the Regulation is revoked.

8.  The Regulation is amended by adding the following Part:

Part III
Rules — Sections 67.7 to 67.9 of the Act

Application of Part

44. (1) If, as of the family law valuation date, a retired member is receiving payment of pension benefits that are variable benefits and pension benefits that are defined benefits under a pension plan,

(a) the preliminary value and imputed value of the retired member’s pension benefits is determined separately for the variable benefits and for the defined benefits; and

(b) this Part applies in respect of the pension benefits that are variable benefits and Part II applies in respect of the pension benefits that are defined benefits.

(2) If, as of the family law valuation date, a retired member is receiving payment of pension benefits that are variable benefits and is also entitled to pension benefits that are defined contribution benefits under the same pension plan,

(a) the preliminary value and imputed value of the retired member’s pension benefits is determined separately for the variable benefits and for the defined contribution benefits; and

(b) this Part applies in respect of the pension benefits that are variable benefits and Part II applies in respect of the pension benefits that are defined contribution benefits.

Preliminary Valuation (Subsection 67.7 (2) of the Act)

Preliminary value of retired member’s variable benefit account

45. The preliminary value of the funds in a retired member’s variable benefit account is the balance in the retired member’s variable benefit account as of the family law valuation date. However, if that amount cannot be determined as of the family law valuation date, it must be determined as of the last day of the month immediately preceding the family law valuation date.

Special circumstances — shortened life expectancy

46. (1) This section applies if, on or before the family law valuation date, the administrator receives an application, that meets the requirements of the Act and General Regulation, for the withdrawal of the funds from a retired member’s variable benefit account in circumstances of the shortened life expectancy of the retired member.

(2) The preliminary value for family law purposes of the funds in a retired member’s variable benefit account is the same as the value of the funds in the retired member’s variable benefit account as determined for section 49 of the Act if, on or before the family law valuation date, the administrator has approved the application for the withdrawal but the funds have not been withdrawn from the variable benefit account.

Special circumstances — shortened life expectancy, extension of time to apply

47. (1) Despite section 46, this section applies if within six months after the family law valuation date, but before the date on which the administrator receives an application for a statement of imputed value under subsection 67.7 (4) of the Act, the administrator receives an application, that meets the requirements of the Act and General Regulation, for the withdrawal of the funds in a retired member’s variable benefit account in circumstances of the shortened life expectancy of the retired member.

(2) The preliminary value for family law purposes of the funds in the retired member’s variable benefit account is the same as the value of the funds in the retired member’s variable benefit account as determined for section 49 of the Act if the following conditions are satisfied:

1. The application for the withdrawal of the funds referred to in subsection (1) includes a statement signed by a physician who is licensed to practise medicine in a jurisdiction in Canada that, in the opinion of the physician, the circumstances of shortened life expectancy existed on the family law valuation date.

2. On or before the date the administrator receives an application for a statement of imputed value, the administrator has approved the application for the withdrawal of the funds referred to in subsection (1), but the funds have not been withdrawn from the pension fund.

(3) If the conditions described in subsection (2) are satisfied and the administrator approves an application for the withdrawal of the funds referred to in subsection (1), the application is deemed, for family law purposes, to have been received on the family law valuation date.

Special circumstances — wind up of pension plan

48. (1) If the pension plan is being wound up and if the effective date of the wind up is on or before the family law valuation date, the preliminary value of the funds in the retired member’s variable benefit account is the same as the value of the funds in the retired member’s variable benefit account as of the effective date of the wind up, accumulated with interest from the effective date of the wind up to the family law valuation date.

(2) However, if the effective date of the wind up is after the family law valuation date, the preliminary value of the funds in the retired member’s variable benefit account is determined without reference to the wind up.

(3) For the purposes of subsection (1), the interest to be accumulated is calculated at the same interest rate used in calculating the value of the funds in the retired member’s variable benefit account on the effective date of the wind up.

Imputed Value for Family Law Purposes (Subsection 67.7 (3) of the Act)

Overview of imputed value

49. For the purposes of subsection 67.7 (3) of the Act, the imputed value, for family law purposes, of the funds in a retired member’s variable benefit account is determined in accordance with sections 50 and 51 of this Regulation.

“Starting date” for imputed value

50. (1) If the imputed value is being determined for the period described in clause 67.7 (3) (a) of the Act, for the purposes of an order under Part I (Family Property) of the Family Law Act, a reference in section 51 of this Regulation to the “starting date” for the imputed value means the date of the spouses’ marriage.

(2) If the imputed value is being determined for the period described in clause 67.7 (3) (b) of the Act, for the purposes of a family arbitration award or domestic contract, a reference in section 51 of this Regulation to the “starting date” for the imputed value means the following date:

1. If Part I (Family Property) of the Family Law Act applies with respect to the spouses,

i. a date chosen jointly by the spouses, which cannot be earlier than the date on which their cohabitation began or later than the date of their marriage, or

ii. if the spouses do not jointly choose a date described in subparagraph i, the date of their marriage.

2. In any other case,

i. a date chosen jointly by the spouses, which cannot be earlier than the date on which the spouses’ cohabitation began, or

ii. if the spouses do not jointly choose a date described in subparagraph i, the date on which their cohabitation began.

Imputed value of the funds in the variable benefit account

51. (1) In this section, a reference to “defined contribution account balance” means the total amount of the contributions, and the interest on the contributions, paid by or for the credit of the retired member and determined on an individual account basis.

(2) Where the starting date for the imputed value is before the date on which the retired member’s variable benefit account was established but on or after the date on which the retired member joined the pension plan, the imputed value of the funds in the retired member’s variable benefit account is the difference between the preliminary value of the funds in the retired member’s variable benefit account and his or her defined contribution account balance in the plan as of the starting date.

(3) Where the starting date for the imputed value is on or after the date on which the retired member’s variable benefit account was established, the imputed value of the funds in the retired member’s variable benefit account is the difference between the preliminary value of the funds in the retired member’s variable benefit account and the balance in the retired member’s variable benefit account as of the starting date.

(4) Where the starting date for the imputed value is before the date on which the retired member joined the pension plan, the imputed value of the funds in the retired member’s variable benefit account is equal to the preliminary value of the funds in the retired member’s variable benefit account.

Statement of Imputed Value (Subsection 67.7 (4) of the Act)

Application for statement of imputed value

52. (1) An application under subsection 67.7 (4) of the Act for a statement of imputed value must be made on a form approved by the Chief Executive Officer and must be accompanied by the material that is specified in the form.

(2) The application form must require the applicant to provide the following information and material:

1. Particulars identifying the pension plan and the administrator.

2. The name and contact information of the applicant and of his or her spouse. The application must also indicate which spouse is the retired member for whom a variable benefit account has been established.

3. Each spouse’s date of birth. Proof of the date of birth must be provided.

4. The spouses’ date of marriage, if applicable. Proof of the date of marriage must be provided. The only acceptable forms of proof are a joint declaration, signed by the spouses, attesting to their date of marriage, a certified copy of their marriage certificate or a certified copy of a domestic contract indicating their date of marriage.

5. The date on which the spouses’ cohabitation began, if the starting date for determining the imputed value is not their date of marriage, if any. Proof of the date on which their cohabitation began must be provided. The only acceptable forms of proof are a joint declaration, signed by the spouses, attesting to that date or a certified copy of a domestic contract indicating that date.

6. The date, if any, chosen jointly by the spouses as the starting date for determining the imputed value, if it is not their date of marriage, if any, or the date on which their cohabitation began. Proof of the jointly-chosen date must be provided. The only acceptable forms of proof are a joint declaration, signed by the spouses, attesting to that date or a certified copy of a domestic contract indicating that date.

7. The spouses’ family law valuation date. Proof of the family law valuation date must be provided. The only acceptable forms of proof are a joint declaration, signed by the spouses, attesting to their family law valuation date or a certified copy of a domestic contract indicating their family law valuation date.

Applications for statement of imputed value, two proposed valuation dates

53. (1) Despite section 52, if the family law valuation date has not been determined under the Act, an application under subsection 67.7 (4) of the Act for a statement of imputed value may be submitted under this section with two different proposed valuation dates on a form approved by the Chief Executive Officer and accompanied by the material that is specified in the form.

(2) The application form must require the applicant to provide the information and material in paragraphs 1 to 6 of subsection 52 (2).

(3) The applicant must provide a joint declaration, signed by the spouses, attesting that the family law valuation date has not been determined and attesting to the two proposed valuation dates.

(4) In an application under this section, each of the proposed valuation dates provided will be deemed to be the family law valuation date only for the purposes of preparing two proposed statements of imputed value under section 55.

(5) For the purposes of section 54, an application under this section shall be treated as two separate applications.

(6) Before making an application under section 57 the applicant must provide the administrator with a joint declaration, signed by the spouses, attesting to the family law valuation date as determined under the Act. The proposed statement of imputed value that was prepared using the family law valuation date is deemed to be the statement of imputed value for the purposes of the Act.

Maximum fee payable for application

54. The maximum fee that may be imposed by an administrator for an application for a statement of imputed value under subsection 67.7 (4) of the Act is $200.

Statement of imputed value — form and contents

55. (1) A statement of imputed value, to be provided under subsection 67.7 (7) of the Act, must be set out on a form approved by the Chief Executive Officer.

(2) Background information: The following background information must be included in the statement:

1. Particulars identifying the pension plan and the administrator.

2. The name and date of birth of each spouse. The statement must also indicate which spouse is the retired member for whom a variable benefit account has been established and when he or she became a retired member.

3. The starting date used for determining the imputed value of the funds in the retired member’s variable benefit account. The statement must indicate whether the starting date is the spouses’ date of marriage, the date on which their cohabitation began or another date chosen jointly by the spouses.

4. The spouses’ family law valuation date or, if applicable, the proposed valuation dates under section 53.

(3) Preliminary valuation: The preliminary value for family law purposes of the funds in a retired member’s variable benefit account and the particulars of the information used to determine the preliminary value must be set out in the statement.

(4) Imputed value: The imputed value of the funds in the retired member’s variable benefit account must be set out in the statement.

(5) Options for spouse: The following information about the options available in the circumstances to the former spouse of a retired member must be included in the statement:

1. If applicable, a description of the options available to the former spouse under subsection 67.8 (2) of the Act for transferring a lump sum from the retired member’s variable benefit account. The statement must also indicate how the former spouse applies for a transfer and indicate the information that he or she will be required to provide in such an application.

(6) General information: The following general information about the pension plan must be included in the statement:

1. An explanation of the provisions of the plan that apply to the retired member.

2. If applicable, particulars relating to the wind up of the pension plan if the effective date of the wind up is on or before the date of the statement of imputed value.

(7) A certificate of the administrator – certifying that the information in the statement is accurate, based on the information provided by the applicant and the information contained in the records of the pension plan – must be included in the statement.

Deadline for providing statement

56. The statement of imputed value must be given to both spouses under subsection 67.7 (7) of the Act within 60 days after the administrator receives the completed application for the statement, accompanied by the required documents and the application fee, if any.

Transfer of a Lump Sum for Certain Family Law Purposes (Section 67.8 of the Act)

Application for transfer of lump sum

57. (1) An application under subsection 67.8 (2) of the Act by an eligible spouse for the transfer of a lump sum must be made on a form approved by the Chief Executive Officer and must be accompanied by the material that is specified in the form.

(2) The application form must require the applicant to provide the following information and material:

1. Particulars identifying the pension plan and the administrator.

2. The name and contact information of the applicant and of his or her spouse.

3. The applicant’s direction to the administrator to make a transfer described in subsection 67.8 (2) of the Act, specifying the type of transfer under that subsection, and the particulars required to enable the administrator to make the transfer.

4. A certified copy of a domestic contract, family arbitration award or court order setting out the family law valuation date and the information described in paragraphs 4 and 5 of subsection 67.8 (1) of the Act concerning the applicant’s entitlement to the transfer and the amount to be transferred. In the case of a family arbitration award or court order, the applicant must also certify that the award or court order is final and is not subject to appeal or review by a court.

Transfers to prescribed retirement savings arrangements

58. The following types of retirement savings arrangements are prescribed for the purposes of paragraph 2 of subsection 67.8 (2) of the Act as the prescribed retirement savings arrangements into which a lump sum may be transferred:

1. A life income fund.

2. A locked-in retirement account.

Restrictions on transfer of lump sum

59. (1) The restrictions set out in this section are prescribed for the purposes of subsection 67.8 (3) of the Act as restrictions that apply with respect to the transfer of a lump sum under section 67.8 of the Act.

(2) The administrator is not required to make the transfer if, after the administrator gave the statement of imputed value to the spouses but before the eligible spouse gave the administrator the completed application for transfer, the funds in the retired member’s variable benefit account ceased to be available for apportionment for family law purposes as a result of a transfer or otherwise.

(3) If the pension plan is being wound up and if the administrator receives the application for the transfer of a lump sum before any funds in the retired member’s variable benefit account are distributed, the transfer is subject to the restrictions set out in section 70 of the Act.

Deadline for making the transfer

60. (1) The lump sum must be transferred under subsection 67.8 (4) of the Act within 60 days after the administrator receives the completed application for the transfer, accompanied by the required documents.

(2) Despite subsection (1), if the transfer is subject to a restriction described in subsection 59 (3) on the wind up of the pension plan, the deadline for transferring the lump sum is the same as the deadline for transferring the balance in of the retired member’s variable benefit account on the wind up.

Updating the imputed value re maximum percentage for transfer

61. (1) The imputed value of the funds in a retired member’s variable benefit account must be updated in accordance with this section for the purposes of subsection 67.8 (6) of the Act.

(2) The imputed value of the funds in a retired member’s variable benefit account accumulates interest from the family law valuation date to the beginning of the month in which the lump sum is to be transferred under section 67.8 of the Act.

(3) The rate of interest is calculated at such rate of return as can reasonably be attributed to the retired member’s variable benefit account between the family law valuation date and the beginning of the month in which the lump sum is to be transferred under section 67.8 of the Act.

Adjustment of account

62. (1) For the purposes of subsection 67.8 (8) of the Act, the funds in a retired member’s variable benefit account are to be adjusted in accordance with subsection (2) upon the transfer of a lump sum under section 67.8 of the Act.

(2) The adjusted amount of the funds in the retired member’s variable benefit account upon the transfer of the lump sum is determined by the following formula,

A – B

in which,

  “A” is the total amount of funds in the retired member’s variable benefit account immediately before the transfer of the lump sum, and

  “B” is the amount of the lump sum that was transferred.

Miscellaneous Matters

Inspection of administrator’s records

63. (1) The administrator of a pension plan is required by clause 29 (1) (c.1) of the Act to make the prescribed records available for inspection without charge by a former spouse, within the meaning of section 67.1 of the Act, of a retired member,

(a) if the former spouse has applied under subsection 67.7 (4) of the Act for a statement of imputed value; or

(b) if the retired member has applied under subsection 67.7 (4) of the Act for a statement of imputed value.

(2) However, the administrator is not required to make the prescribed records available to the former spouse after the earlier of,

(a) one year after the date on which the administrator gives the statement of imputed value to the former spouse or to the retired member, as the case may be, under subsection 67.7 (7) of the Act; and

(b) the date on which the administrator transfers a lump sum to the former spouse under subsection 67.8 (4) of the Act.

Part IV
Transition

Transition

64. (1) References in this Regulation to a form approved by the Chief Executive Officer are deemed to include the last form approved by the Superintendent for the purposes of the relevant provision prior to the day section 1 of Schedule 23 to the Plan for Care and Opportunity Act (Budget Measures), 2018 came into force until the Chief Executive Officer approves a subsequent form for the purposes of the relevant provision.

(2) For the purposes of this Regulation, an application made to the Superintendent for the Superintendent’s consent under the Act, as it read prior to the day section 1 of Schedule 23 to the Plan for Care and Opportunity Act (Budget Measures), 2018 came into force, is deemed to have been an application made to the Chief Executive Officer for the Chief Executive Officer’s consent.

(3) For the purposes of this Regulation, a consent given by the Superintendent under the Act, as it read prior to the day section 1 of Schedule 23 to the Plan for Care and Opportunity Act (Budget Measures), 2018 came into force, is deemed to have been given by the Chief Executive Officer.

(4) Any report filed with the Superintendent under this Regulation, as it read prior to the day section 1 of Schedule 23 to the Plan for Care and Opportunity Act (Budget Measures), 2018 came into force, is deemed to have been filed with the Chief Executive Officer.

Commencement

9. This Regulation comes into force on the later of the day section 14 of Schedule 27 to the Stronger, Healthier Ontario Act (Budget Measures), 2017 comes into force and the day this Regulation is filed.

 

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