Definitions

1  In this regulation:

"Act" means the Family Relations Act;

"entitlement date" means, in relation to a spouse, the date on which the spouse became entitled to an interest in family assets in accordance with section 56 (1) [entitlement to family assets on marriage breakdown] of the Act;

"net investment returns" means interest, dividends and realized and unrealized capital gains and losses, less related investment expenses normally charged to investment earnings;

"pensionable service" means the months or parts of months in respect of which pension entitlement in favour of a member accrues, and includes pension entitlement earned by a member under another plan that has been transferred to the credit of the member;

"vested pension" means a pension under which a member has an unrestricted entitlement, or option of an entitlement, to the payment of benefits that will become payable in accordance with the plan or applicable legislation.

 Application and interpretation of regulation

2  (1)  This regulation applies to the division of a pension under Part 6 of the Act, except as modified directly or indirectly by an order of the Supreme Court under the Act or by an agreement between the spouse and the member in accordance with section 80 [written agreements between member and spouse] of the Act.

(2)  In this regulation, if a reference to a provision of the Act is followed by italicized words in square brackets that are or purport to be descriptive of the subject matter of the referenced provision, the words in brackets are provided for convenience of reference only and are not to be interpreted as forming part of the provision in which the reference is made.

 Requirements for giving notice to a plan

3  (1)  Notices under the following sections of the Act must be in the specified form set out in the Schedule to this regulation:

(a) notice under section 82 [information from plan] must be given in Form 1: Claim of Spouse to Interest in Member's Pension;

(b) notice under section 72 (1) [limited members] must be given in Form 2: Request for Designation as Limited Member of Pension Plan;

(c) notice under section 73 [division of unmatured defined contribution plan] must be given in Form 3: Request for Transfer from Unmatured Defined Contribution Plan;

(d) notice under section 74 [division of unmatured defined benefit plan] must be given in Form 4: Request by Limited Member for Transfer or Pension;

(e) notice under section 76 (4) [benefit split of previously divided matured pension] must be given in Form 5: Request in relation to a Matured Pension Divided under an Agreement or Court Order Made Before July 1, 1995 for Designation as Limited Member and for Payment of Benefits.

(2)  On receipt of a notice referred to in subsection (1), the administrator must send to the member a notice in Form 6: Notice of Receipt.

(3)  If a plan does not comply with a notice referred to in subsection (1) because it is incomplete, or because it fails to provide sufficient information for the plan to act on it, within 30 days after receiving the notice the administrator must give written notice of the inability to comply to both the spouse and the member.

(4)  The obligation under subsection (3) is satisfied if the written notice is mailed to the spouse and member at their addresses given on the applicable notice referred to in subsection (1).

 Failure of a plan to comply with a notice

4  (1)  If a plan fails to act on a notice referred to in section 3 of this regulation within 30 days of its delivery to the administrator, in proceedings under Part 5 of the Act or on application by the spouse under section 66 [determination of ownership, possession or division of property] of the Act, the Supreme Court may make orders as follows:

(a) in the case of a defined contribution plan that has not matured, directing the administrator to pay out the spouse's share from the plan in accordance with section 73 [division of unmatured defined contribution plan] of the Act;

(b) in the case of a defined benefit plan that has not matured, directing the administrator to

(i)  pay out the commuted value of the spouse's share from the plan in accordance with section 74 (a) [transfer of proportionate share] of the Act, or

(ii)  create a separate pension from the plan in favour of the spouse in accordance with section 74 (b) [separate pension] of the Act;

(c) in the case of a matured pension, directing the administrator to pay to the spouse, as applicable,

(i)  a proportionate share of benefits paid under the pension in accordance with section 76 (1) [benefit split of matured pension] of the Act, or

(ii)  a postretirement survivor benefit in accordance with section 76 (2) [designated beneficiary of postretirement survivor benefit] of the Act;

(d) otherwise requiring compliance with the Act.

(2)  The administrator is a party to proceedings under subsection (1) and the petition or notice of application must be served on the administrator.

[am. B.C. Reg. 152/2010.]

 Calculation of commuted value

5  (1)  If calculation of the commuted value of a pension or a portion of a pension is required, for the purposes of determining that value in accordance with the Pension Benefits Standards Act, the time in question is whichever of the following dates is applicable, as if the member terminated employment on that date:

(a) in the case of a transfer under section 74 (a) [transfer of share of unmatured defined benefit plan] of the Act, the date for which the spouse requests in accordance with that section the transfer of a share of an unmatured defined benefit plan;

(b) in the case of a transfer under section 78 (1) [death of member] of the Act, the date of death of the member;

(c) in the case of a transfer under section 78 (3) [death of limited member] of the Act, the date of death of the limited member;

(d) in the case of a transfer required by a plan under section 79 [transfer required by plan] of the Act, the date on which the plan notifies the spouse that it is requiring the transfer.

(2)  For certainty, a request by a spouse under subsection (1) applies whether or not the member would be entitled to request a transfer on the applicable date.

 Calculation of proportionate share

6  (1)  This section applies if the calculation of a proportionate share of a pension, benefit or commuted value is required under this regulation or under any of the following sections of the Act:

(a) section 74 [transfer share of unmatured defined benefit plan];

(b) section 76 [benefit split of matured pension];

(c) section 77 (1) [division of extraprovincial plan];

(d) section 78 (3) [death of limited member];

(e) section 79 [transfer required by plan].

(2)  Subject to subsections (3) and (4), the proportionate share must be determined in accordance with the following formula:

where

(3)  If the determination of a proportionate share of a preretirement survivor benefit is required under section 78 (1) [death of member] of the Act, the proportionate share must be determined in accordance with the following formula:

where

(4)  If the member referred to in subsection (2) or (3) accumulates additional pensionable service after the determination of either a spouse's proportionate share of a phased retirement benefit under section 74 (b) (ii) of the Act or a spouse's proportionate share of benefits paid under a matured pension under section 76 (1) of the Act, then the proportionate share must, whenever any of the following may subsequently apply, be recalculated to take into account the additional pensionable service accumulated by the member:

(a) the spouse is to receive

(i)  a share of the commuted value of the pension under section 74 (a) of the Act,

(ii)  a separate pension under section 74 (b) (i) of the Act, or

(iii)  a share of the preretirement survivor benefit under section 78 (1) of the Act;

(b) the limited member's estate is to receive a share of the commuted value of the pension under section 78 (3) of the Act;

(c) payment of the member's matured pension resumes.

[am. B.C. Reg. 399/2008, App. B, s. 1.]

 Transfer from plan to locked in retirement plan

7  If the Act requires or authorizes a plan to transfer an amount to the credit of a spouse, the transfer must be made either

(a) in accordance with section 33 (2) of the Pension Benefits Standards Act, or

(b) to another account in the plan, either existing or created to receive the transfer, on the same basis as a transfer to another plan under section 33 (2) of the Pension Benefits Standards Act.

 Adjustment of a member's pension under defined benefit plan

8  (1)  A member's pension or benefits in a defined benefit plan subject to a division to which Part 6 of the Act applies must be adjusted in accordance with this section.

(2)  The plan must adjust the member's pension or benefits under it in accordance with subsection (3) to reflect the transfer of the value to the spouse or the spouse's estate if, under the Act, a spouse or a spouse's estate receives from a defined benefit plan

(a) a separate pension, or

(b) a transfer of a proportionate share of the commuted value of a pension.

(3)  An adjustment under subsection (2) must be on a neutral basis to the plan and the member as follows:

(a) if all of the member's pension is vested, the adjustment must be done by reducing the member's pensionable service;

(b) in other cases, the adjustment must be done by deducting from the pension or benefits the present value, at the time of adjustment, of the amount paid or transferred to the credit of the spouse or the spouse's estate.

(4)  As an example of the application of subsection (3) (a), if the spouse's share of the member's pension is calculated using the proportionate share determined under section 6 (2) of this regulation and the proportionate share has not been modified by court order or agreement, the member's pensionable service is to be reduced by one-half of the pensionable service accumulated by the member from the date of marriage to the entitlement date for the spouse.

(5)  A reduction under subsection (3) (a) is only for the purposes of an adjustment under this section and does not affect the member's eligibility in relation to the pension or benefits.

(6)  If a spouse receives from a defined benefit plan a proportionate share of benefits under a pension, including pre-retirement survivor benefits, the person entitled to the benefits, but for the operation of Part 6 of the Act, receives the remainder of the benefits after the payment of the proportionate share.

 Transfer of share from a defined contribution plan that is unmatured

9  (1)  If, under section 73 [division of unmatured defined contribution plan] of the Act, a local plan that is a defined contribution plan is required to transfer an amount to the credit of a spouse of a member, the amount must be calculated in accordance with the following formula:

where

(2)  If an administrator cannot otherwise make the calculation under subsection (1) for contributions made to a plan before Part 6 of the Act came into force, the administrator must determine the amount in relation to those contributions in accordance with the following formula and calculate the amount, if any, in relation to other contributions in accordance with subsection (1):

where

 Limited member's separate pension in a local defined benefit plan

10  A separate pension in favour of a spouse as a limited member under section 74 (b) (i) [division of unmatured defined benefit plan] of the Act must be

(a) based on a proportionate share of the pension the member would have received had there been no division under the Act and had the member elected a pension in the unadjusted normal form provided under the plan,

(b) converted into

(i)  a single life pension, or

(ii)  another form or combination of forms of pension that members of the plan may elect,

such that the total actuarial present value of the separate pension is not less than the actuarial present value of the proportionate share credited to the spouse of the member's pension as if that share was a pension in the unadjusted normal form provided under the plan, and

(c) adjusted in accordance with actuarial principles to take into account any difference between the age of the spouse and the member.

[am. B.C. Reg. 399/2008, App. B, s. 2.]

 Calculation of a compensation payment

11  (1)  This section applies if provision is made for satisfaction of pension entitlement by any of the following:

(a) a compensation payment under section 66 [determination of ownership, possession or division of property] of the Act;

(b) a compensation payment under section 80 (1) (d) [written agreements between member and spouse] of the Act;

(c) a compensation payment or amount transferred under section 80 (4) [agreement between plan and spouse] of the Act.

(2)  A compensation payment or transfer referred to in subsection (1) must be determined as a proportionate share of an amount equal to the present value of the future pension benefits payable to the member.

(3)  Without limiting the contingencies that may be considered in making a determination under subsection (2), the determination must make reasonable provision for the following contingencies:

(a) the possibility that the member may terminate employment or die before retirement;

(b) the possibility that the member may retire at an early, late or normal retirement date;

(c) the possibility that benefits being divided as family assets and paid under the plan will increase, whether by an automatic formula or on an ad hoc basis, after the date selected for valuing the benefits;

(d) to the extent that benefits being divided as family assets are related to future salary levels, the possibility that salary levels will increase after the date selected for valuing the benefits.

(4)  If the pension is not a vested pension at the date of valuation, the spouse may elect to

(a) postpone valuation until it is ascertained whether the pension vests, or

(b) have the valuation proceed assuming the pension will vest, but adjusting it to take into account the contingency that the member may die or leave employment before vesting.

 Age at which disability pensions to be dealt with as matured pension

12  The payment of a disability pension to a member after the member reaches age 60 is a matured pension for the purposes of Part 6 of the Act and this regulation.

 Administrative costs

13  The amount to be paid to a plan by the spouse and member under section 81 [administrative costs] of the Act must not exceed whichever of the following is applicable:

(a) $500 for a defined benefit plan;

(b) $150 for a defined contribution plan;

(c) $650 for a hybrid plan.

 Information to be provided by plan

14  (1)  Within 60 days after receipt of a written request from a spouse who is entitled to information under section 82 [information from plan] of the Act, the plan must provide the spouse with any information necessary to value the interest of the applicable member in the pension, subject to the limit that, after the information is provided once to the spouse,

(a) the plan is only required to provide the spouse with information that updates the information previously provided under this subsection, and

(b) the plan is only required to provide information referred to in paragraph (a) once in each calendar year.

(2)  At least once in each calendar year, a plan must provide the following information to a limited member:

(a) any information or notice available to members of the plan;

(b) to the extent that it is not provided under paragraph (a), information on options available to and elections that may be made by the member with respect to the pension;

(c) to the extent that it is not provided under paragraph (a), information on options available to and elections that may be made by a limited member with respect to the pension.

(3)  As an exception to subsection (2), after a limited member is in receipt of a separate pension under the Act, the limited member is entitled to information from the plan only in respect of the separate pension.

(4)  On written request of a spouse who

(a) has delivered a notice under section 82 [information from plan] of the Act, and

(b) continues to have an interest in the pension,

a plan must provide to the spouse the information referred to in subsection (2), subject to the limit that the plan is not required to provide the information more than once in any calendar year.

(5)  If information or notice is required to be given under this section, it must be given by ordinary mail sent to the last address provided by the person entitled to receive it.

 Plan must give notice to spouse if member's interest may be affected

15  A plan must give a spouse who is entitled to information under section 82 [information from plan] of the Act, either as a limited member or as a spouse who has delivered a notice under that section, 30 days advance notice of any transaction relating to the applicable member's interest in the pension by reason of

(a) the death of the member,

(b) retirement of the member, or

(c) a direction given to the plan by the member.