Acts and Regulations

2016, c.106 - Provincial Court Judges’ Pension Act

Section 40
Disposition versions

Full text
Transitional provisions
40(1)In this section, “benefit” , when used with reference to the Provincial Court Act, means a benefit as defined in that Act.(prestation)
40(2)The provisions of the Provincial Court Act relating to benefits do not apply to a judge appointed as a judge on or after February 18, 2000, and the judge, the spouse, common-law partner, child or estate of the judge or the legal representative of any of them, shall not be paid any benefit under that Act.
40(3)Subject to subsections (8), (13), (15) and (16), a judge appointed as a judge on or before February 18, 2000, the spouse, common-law partner, child or estate of the judge or the legal representative of any of them, as the case may be, may elect to be paid the benefits to which any of them are entitled under the Provincial Court Act, or to be paid the benefits to which any of them are entitled under this Act, on the occurrence of any one of the following events:
(a) the judge retires and is entitled to be paid an annuity under the Provincial Court Act or an annual pension under this Act, immediately on retirement;
(b) the judge has been removed from office as a judge and all opportunities for appeal of the removal from office have been exhausted, or the judge dies or resigns;
(c) the judge becomes disabled;
(d) the judge asks to retire and be paid a deferred pension;
(e) the judge, spouse, common-law partner, child, estate or legal representative, as the case may be, becomes entitled to a return of contributions, with or without interest; or
(f) the judge, spouse, common-law partner, child, estate or legal representative, as the case may be, becomes entitled to be paid any other benefit under the Provincial Court Act or this Act, whether immediately or at a future date.
40(4)A judge to whom subsection (3) applies may, if he or she has elected supernumerary status under section 4.21 of the Provincial Court Act and proposes to remain in office after December 31 of the year in which he or she becomes the age prescribed in subparagraph 8502(e)(i) of the Income Tax Regulations under the Income Tax Act (Canada), elect to be paid the benefits to which he or she is entitled under the Provincial Court Act rather than the benefits to which he or she is entitled under this Act.
40(5)An election under subsection (4) shall be made by delivering to the Minister a notice of election, which
(a) shall be in writing,
(b) shall be signed by the judge,
(c) shall be delivered to the Minister no later than September 30 of the year in which the judge becomes the age prescribed in subparagraph 8502(e)(i) of the Income Tax Regulations under the Income Tax Act (Canada), and
(d) is irrevocable.
40(6)If an election is made in accordance with subsection (5), the judge is not subsequently deemed, by virtue of the combined effect of subsection 7(2) and subsection (8), to make an election to be paid benefits only under this Act.
40(7)Subject to paragraph (15)(c), if a judge, the spouse, common-law partner, child or estate of a judge or the legal representative of any of them, as the case may be, is paid or elects to be paid any benefit under the Provincial Court Act, none of them may be paid or elect to be paid any benefit under this Act, and if a judge, the spouse, common-law partner, child or estate of a judge or the legal representative of any of them, as the case may be, is paid or elects to be paid any benefit under this Act, none of them may be paid or elect to be paid any benefit under the Provincial Court Act.
40(8)A judge who has ceased to make contributions to the Fund as provided for under subsection 7(1) or (2) or who has made an election under subsection 13(1) or (4), 14(1), 16(1) or 17(1) shall be deemed to have made an election to be paid benefits only under this Act and that election to be paid benefits only under this Act is irrevocable.
40(9)Subject to subsections (8), (15) and (16), when an event referred to in subsection (3) occurs
(a) the Minister shall determine whether the judge, spouse, common-law partner, child, estate or legal representative, as the case may be, would be paid a more favourable benefit under the Provincial Court Act or under this Act as the result of the occurrence of the event and shall, without delay, serve the judge, spouse, common-law partner, child, estate or legal representative, as the case may be, with a written notice describing the benefit payable under each of the two Acts and designating which benefit is, in the opinion of the Minister, more favourable and under which Act it would be paid, and
(b) the judge, spouse, common-law partner, child, estate or legal representative, as the case may be, shall be paid that more favourable benefit and shall be deemed to have elected to be paid it under the designated Act, unless an election is made in accordance with subsection (10) to be paid a benefit under the other Act.
40(10)Subject to subsections (8), (15) and (16), a judge, spouse, common-law partner, child, estate or legal representative, as the case may be, who wishes to elect payment of a benefit under an Act different from the Act designated by the Minister in the notice served under subsection (9) shall make an election of the benefit under the other Act by delivering to the Minister a notice of election, which
(a) shall be made in writing, shall describe the nature of the benefit elected and shall indicate the Act under which the benefit is paid,
(b) shall be signed by the judge, spouse, common-law partner, child or legal representative, as the case may be, and
(c) shall be delivered to the Minister not more than 30 days after the judge, spouse, common-law partner, child or legal representative is served with the Minister’s notice.
40(11)The Minister may, in circumstances considered appropriate by the Minister, extend the deadline referred to in paragraph (10)(c).
40(12)A notice of election under subsection (10)
(a) is not effective unless it is delivered to the Minister before the 30-day deadline or the extended deadline, as the case may be, is past, and
(b) is irrevocable.
40(13)Subject to subsection (14) and paragraph (15)(c), nothing in this section shall be construed so as to
(a) permit or entitle a judge who has not retired on or before February 18, 2000, the spouse, common-law partner, child or estate of such a judge or the legal representative of any of them, to be compensated as though the judge had retired on or before that date, or to be paid a benefit referred to in subsection 7(2) in relation to any time before February 18, 2000, or
(b) permit, or entitle any person to, the election of a benefit, a determination of the commuted value of a benefit, the determination of the portion of the commuted value of a benefit to be divided, the revaluation of a benefit, the reduction of the spouse’s portion or common-law partner’s portion or the conduct of any other matter in relation to the division of a benefit on the breakdown of a marriage or common-law partnership, under this Act instead of under the Provincial Court Act, if any of those matters are dealt with in a decree, order, judgment or written agreement issued, given or made before February 18, 2000.
40(14)A judge to whom paragraph 7(2)(a) applies shall be paid an amount equal to the amount of the benefit, with interest, that would have been paid to the judge under Part 3 in the period between April 1, 1998, and February 18, 2000, inclusive, if paragraph 7(2)(a) had come into force and this Act had received Royal Assent on April 1, 1998, and section 24 applies with the necessary modifications to the payment.
40(15)If the commuted value of a benefit of a judge is to be divided on the breakdown of a marriage or common-law partnership in accordance with the Provincial Court Act or this Act, as designated in a decree, order, judgment or written agreement
(a) subject to paragraph (13)(b), the determination of the commuted value of the benefit, the determination of the portion of the commuted value of the benefit to be divided, the revaluation of the judge’s benefit, the reduction of the spouse’s portion or common-law partner’s portion and all other matters in relation to the division shall be conducted in accordance with the designated Act,
(b) subject to paragraph (13)(b), that division shall be deemed to be an irrevocable election of the designated Act for those purposes, and
(c) the division under the designated Act shall not be deemed to be an election by the judge or any other person of an entitlement to payment at a later date of a benefit under that Act, unless the election is made or deemed to be made independently of the decree, order, judgment or written agreement.
40(16)Despite subsection (15), the revaluation of the judge’s portion of an annual pension on the breakdown of his or her marriage or common-law partnership in accordance with the designated Act shall apply and be irrevocable, whether the judge at a later date or independently elects an entitlement to be paid the annual pension under the designated Act or the other Act.
2000, c.P-21.1, s.37; 2003, c.18, s.13; 2008, c.45, s.28; 2011, c.12, s.1