Pension Division and the FLA CBA - Joint Session - Family Law and Pension & Benefits February 7th, Vancouver Thomas G. Anderson, Q.C. Anderson Pension Law Consulting

What’s new under the FLA Much will feel familiar Some things that stayed the same: – FRA - division of family assets under Part 5 – FLA - Part 5 – FRA - pension division rules - Part 6 – FLA - Part 6

Different definition of “spouse” FRA - married spouse, s agreement, unjust enrichment FLA – married spouse or 2 year marriage-like relationship – married - “spouse” for up to 2 years after divorce – marriage-like relationship - 2 years after separation

Family Property Basics FRA - crystallizes on triggering event FLA - “crystallizes”? if so, on separation FRA - property owned before marriage can be family asset FLA - property owned before marriage “excluded property”

Portion of Benefits Subject to Division FRA - marriage to triggering event FLA - date marriage-like relationship commenced to date of separation FRA - if no dates: default rules apply FLA - if no dates: administrator can't divide the benefits

FRA - FLA - concepts retained Local Plan Limited Member DC account DB provision Hybrid plan

Information from administrator FRA - Form 1 FLA - Form P1 provide requested information admin must give 30 day’s advance notice mail, , fax Member’s personal information can’t be disclosed

DC Account Form P3, agreement/order, admin. fee transfer from plan to prescribed pension vehicle – e.g., RRSP admin. can consent to keep in plan – if so: Form P2 - limited member

DC proportionate share formula FRA 1/2 x [A-B] FLA Reg. 20: – transfer amount = – 1/2 (account balance - pre-relationship contributions) same formula

DB proportionate share formula FRA 1/2 x A/B FLA Reg. 17: – proportionate share = – 1/2 x – (pensionable service during entitlement period – divided by – total pensionable service) same formula

Options for dividing Unmatured DB benefits s. 115 spouse becomes limited member when member eligible for pension commencement LM can choose between – 1. lump sum transfer – 2. separate pension

FRA Rule? separate pension available when member's pension commenced

Valuing spouse's share - separate pension determined by – assuming member’s pension commences at average age of retirement for plan – converted into separate pension for LM based on LM's life expectancy

Death of spouse before benefits divided? FRA - spouse's share transferred to estate FLA - same (s. 124(4))

Death of member before benefits divided? FRA - spouse received share of preretirement survivor benefits FLA - spouse receives share of benefits determined day before death of member – Survivor benefits based on member’s share – payable to Member's spouse, beneficiary, estate

Transition rules Agreement made under FRA FLA in force – - benefits not divided – - member dies What rules apply?

Transition rules (cont.) if addressed in the agreement? – that determines spouse's entitlement if agreement silent? – FLA rules apply (s. 253(2)) if administrator consulted on this issue? – directions received apply

Matured pension Under the FRA – spouse becomes LM – income stream divided between parties – death of spouse - all to member – death of member - determined by survivor benefit election FLA - same

Matured pension - DC account withdrawals/ variable pension FLA - if funds still in DC account? – still apply the rules that apply under s. 114

Supplemental Plans FRA – extraprovincial plan rules – benefit split FLA – separate pension when member's pension commences – other options available with plan consent

IPP FLA - separate pension when member's pension commences other options available with plan consent

Administrative Liability no obligation to divide until administrator has – forms – agreement/order – admin. fee – other documents reasonable required incomplete application? – notice obligation discharges liability.

PBSA & Pension Division Spousal rights under PBSA – survivor benefits PBSA rules after pension division FLA – expanded rules about what constitutes division of pension - s. 145

Drafting Agreements and Court Orders dividing Pension Benefits Must specify dates common clauses already part of legislation For example – tax indemnity, trust clauses, liberty to apply Family Law Agreements - Annotated Precedents website Q&A

Forms Form P1, “Claim and Request for Information and Notice” – Same as old Form 1 – Can use to authorize representative Form P2, “Request for Designation as Limited Member” – Same as old Form 1 – used any time division is deferred or ongoing

Forms (cont.) Form P3, “Request for Transfer from Defined Contribution Account” – same as old Form 3 – transfer funds to RRSP Form P4, “Request by Limited Member for Transfer or Separate Pension” – same as old Form 4 – elect between lump sum transfer & separate pension

Forms (cont.) Form P5, “Waiver of Survivor Benefits after Pension Commencement” – designed not to be used Form P6, “Administrator/Annuity Issuer Response” – used by admin to give notice to member & spouse

Forms (cont.) Form P7 - “Withdrawal of Notice/Waiver of Claim” – if share of benefits satisfied in some other way Form P8, “Change of Information” – important: former spouse must keep contact info up to date.

Forms (cont.) Form P9, “Agreement to Have Benefits Divided Under Part 6” – DIY

QUESTIONS?