BILL 11 - Provincial Court Judges’ Pension Act

BILL 11

Provincial Court Judges’ Pension Act

Chapter Outline

PART I

INTERPRETATION

Definitions 1

Account — Compte

active judge — juge actif

actuarial equivalent — équivalent actuariel

annual pension — pension annuelle

average salary — traitement moyen

benefit — prestation

child — enfant

deferred pension — pension différée

dependent child — enfant à charge

dependent children’s pension — pension d’enfants à charge

disability benefit — prestation d’invalidité

disability pension — pension d’invalidité

disabled — invalide

Fund — Caisse

inactive judge — juge inactif

interest — intérêt

judge — juge

Minister — Ministre

pensionable service — service ouvrant droit à pension

Plan — Régime

removed from office as a judge — démis de ses fonctions de juge

retire — prendre sa retraite

return of contributions — remboursement des cotisations

salary — traitement

spouse — conjoint

supplementary payment — versement supplémentaire

surviving spouse’s pension — pension de conjoint survivant

Calculation of time 2

Matters concerning marriage 3

PART II

ACCOUNT AND FUND

Provincial Court Judges’ Pension Trust Account

and Fund 4

Contributions, and length of pensionable service 5

Payments into and out of Fund 6

Returns of contributions 7

PART III

PROVINCIAL COURT JUDGES’ REGISTERED PENSION PLAN

Judges’ annual pensions 8

Surviving spouse’s pension 9

Dependent children’s pension 10

Election of judge with spouse 11

Election of judge with no spouse and no dependent child 12

Disability pension 13

Early retirement 14

Deferred pension 15

Application of sections 8 to 15 16

Maximum benefit payable 17

PART IV

SUPPLEMENTARY ALLOWANCES, OTHER

SUPPLEMENTARY PAYMENTS AND

DISABILITY BENEFITS

Supplementary allowances of judges 18

Reduced supplementary allowances 19

Disability benefits 20

Payments out of Consolidated Fund 21

Delay in entitlement to supplementary allowances

and other supplementary payments 22

Application of Part III to supplementary allowances

and other supplementary payments under Part IV 23

Application of section 36 and regulations to supplementary

allowances, other supplementary payments and

disability benefits under Part IV 24

PART V

GENERAL PROVISIONS

Annual adjustments 25

Division of benefits on marriage breakdown 26

Cessation of payments on death of judge 27

Payment in arrears 28

Suspension of benefit 29

Designation of person to manage recipient’s affairs 30

Prohibition respecting rights 31

Construction of provisions respecting limitations on types

of benefits that may be paid 32

PART VI

ADMINISTRATION

Administration of Act 33

Annual report by Minister 34

PART VII

SERVICE OF DOCUMENTS

Service of documents 35

PART VIII

REGULATIONS

Regulations 36

PART IX

TRANSITIONAL PROVISIONS

Transitional provisions 37

Return of overpayment of contributions 38

PART X

CONSEQUENTIAL AMENDMENTS

Consequential amendments 39

PART XI

COMMENCEMENT

Commencement 40

 

 

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART I

INTERPRETATION

Definitions

1 In this Act

"Account" means the Provincial Court Judges’ Pension Trust Account referred to in subsection 4(1);

"active judge" means a judge who has not retired, resigned or been removed from office as a judge and is not being paid a disability benefit;

"actuarial equivalent" means, in relation to a given benefit and an alternative benefit, the amount of the alternative benefit, in the required form, that is considered by the actuary appointed for the Plan by the Minister to be equal in value to the given benefit, on the basis of such actuarial assumptions and other appropriate factors as may be adopted from time to time by the Minister on the advice of the actuary;

"annual pension" means an annual pension described in section 8, a deferred pension, a disability pension and an annual pension paid under section 11, 12 or 14;

"average salary" means the highest average annual salary received by a judge as an active judge, calculated for any period of thirty-six successive months during which the judge was an active judge;

"benefit" means, unless otherwise indicated, an annual pension, a surviving spouse’s pension or a dependent children’s pension paid to a judge or a judge’s spouse, dependent child or estate or the legal representative of any of them, a supplementary allowance or supplementary payment under Part IV, a disability benefit, a monthly installment paid under section 28 and a return of contributions, but does not include a payment referred to in subsection 21(4);

"child" means a child of a judge and includes a natural child, a stepchild and an adopted child;

"deferred pension" means a pension described in section 15;

"dependent child" means a child of a judge who survives the judge, is dependent on the judge for support on the date of the judge’s death and

(a) is under nineteen and will not be nineteen in the calendar year during which the judge dies,

(b) is under twenty-five, will not be twenty-five in the calendar year during which the judge dies and is in full-time attendance at an educational institution, or

(c) is, on the date of the judge’s death, dependent on the judge for support because of mental or physical infirmity;

"dependent children’s pension" means a pension described in section 10;

"disability benefit" means a disability benefit described in subsection 20(1);

"disability pension" means a disability pension described in section 13;

"disabled" means, in relation to a judge, suffering from a physical or mental impairment that prevents the judge from performing the duties of the position or office of a judge, in which the judge was engaged before the beginning of the impairment, as determined by the Minister after considering the written opinion of such medical practitioner or practitioners as the Minister considers appropriate;

"Fund" means the Provincial Court Judges’ Pension Trust Fund referred to in subsection 4(2);

"inactive judge" means a judge who has retired, resigned or been removed from office as a judge or is being paid a disability benefit;

"interest" means interest calculated and credited in accordance with the regulations, at the rate established by regulation;

"judge" means an active or an inactive judge appointed under subsection 2(1) of the Provincial Court Act and includes a chief judge and an associate chief judge appointed under that Act;

"Minister" means the Minister of Finance and includes anyone designated by the Minister to act on his or her behalf;

"pensionable service" means, subject to subsections 5(2) and (4) and unless otherwise indicated in this Act or the regulations, any period of service to the credit of a judge as an active judge under this Act that may be used in the calculation of a benefit, if the judge has received remuneration for that period in accordance with subparagraph 8503(3)(a)(i) of the Income Tax Regulations under the Income Tax Act (Canada), and includes any period of leave of absence during or respecting which the judge has made contributions under subsection 5(1) and, where applicable, any period of service to the credit of the judge as an active judge or as an active magistrate under the County Magistrates Act, the Magistrates Courts Act or the Provincial Court Act, that may be used in calculating a benefit if the judge has received remuneration for any period in accordance with subparagraph 8503(3)(a)(i) of the Income Tax Regulations under the Income Tax Act (Canada);

"Plan" means the Provincial Court Judges’ Pension Plan established in this Act;

"removed from office as a judge" means removed from office as a judge by Order-in-Council, whether or not all opportunities for appeal have been exhausted;

"retire" includes, unless otherwise indicated, to resign or to be removed from office as a judge, but does not include to become disabled and be paid a disability benefit;

"return of contributions" means a return of contributions, together with interest, described in section 7 or 38;

"salary" means the compensation received by a judge for the performance of the regular duties of the position or office of an active judge;

"spouse" means a spouse as defined in the Income Tax Act (Canada), but, for the purposes of a void or voidable marriage, does not include a reference to any provision of that Act contained in that definition;

"supplementary payment" means a supplementary payment out of the Consolidated Fund under subsection 21(2);

"surviving spouse’s pension" means a pension described in section 9.

 

Calculation of time

2 Where a reference is made in this Act to a person being or becoming a specified age or being under or over a specified age, the person shall be deemed to be or to become the specified age at the beginning of the calendar month next following the calendar month in which the person actually is or becomes or will be or become that age.

Matters concerning marriage

3(1) For the purposes of this Act and the regulations, "marriage breakdown" shall be deemed to include a breakdown in the relationship between persons who are spouses because they cohabited together in a conjugal relationship as provided for in the definition "spouse" in section 1.

3(2) For the purposes of this Act and the regulations, the date of marriage of two persons who are spouses shall be

(a) if the persons are spouses because they were married to each other, the date on which they were married,

(b) if the persons are spouses because they were parties to a voidable marriage, the date on which they were married,

(c) if the persons are spouses because they were parties to a void marriage, the date on which they went through a form of marriage, or

(d) if the persons are spouses because they cohabited together in a conjugal relationship as provided for in the definition "spouse" in section 1, deemed to be the date on which they began to cohabit.

3(3) If, because of the operation of subsection (2), more than one date would be or could be deemed to be the date of marriage of two persons, their date of marriage shall be deemed to be the earlier or earliest of those dates.

PART II

ACCOUNT AND FUND

Provincial Court Judges’ Pension Trust Account and Fund

4(1) The Provincial Court Judges Superannuation Account established under section 3 of New Brunswick Regulation 84-104 under the Provincial Court Act is hereby continued as the Provincial Court Judges’ Pension Trust Account.

4(2) The pension trust fund into which the pension contributions of judges were paid under subsection 17.1(2) of the Provincial Court Act before the commencement of this subsection is hereby continued as the Provincial Court Judges’ Pension Trust Fund, and all contributions made under this Act to the Account shall be paid into that Fund.

4(3) The New Brunswick Investment Management Corporation shall be the trustee of the Fund and the Fund shall be held in trust by that corporation.

4(4) All benefit payments under Part III, all benefit payments under the Provincial Court Act except payments referred to in subsection 21(4) of this Act and all returns of contributions that were deductible contributions, as provided for in subsection 147.2(4) of the Income Tax Act (Canada) and in paragraph 8503(4)(a) of the Income Tax Regulations under that Act, and that were paid into the Fund, shall be a charge upon and payable out of the Fund.

4(5) Expenses that relate to the administration of the provisions of this Act, expenses that relate to the administration of the benefit provisions of the Provincial Court Act other than payment under subsection 21(4) of this Act and expenses that relate to the management and investment of the Fund are a charge upon and payable out of the Fund.

4(6) All interest arising from the Fund shall be paid into and form part of the Fund.

Contributions, and length of pensionable service

5(1) An active judge shall make contributions in relation to the Plan in an amount established by the regulations, in accordance with and as required in the regulations, until the judge has 23.63 years of pensionable service.

5(2) Notwithstanding subsection (1), an active judge who is or becomes sixty-nine on or after the date on which that subsection comes into force shall cease to make contributions as required in that subsection, and shall not acquire pensionable service,

(a) on and after the date on which that subsection comes into force, and any benefit that the judge is entitled to be paid under Part III shall begin to be paid not later than that date, if the judge was at least sixty-nine on the thirty-first day of December preceding the date on which that subsection comes into force, and

(b) on and after the day following the last day of the year in which the judge becomes sixty-nine, and any benefit that the judge is entitled to be paid under Part III shall begin to be paid not later than that day, if the judge was not at least sixty-nine on the thirty-first day of December preceding the date on which subsection (1) comes into force.

5(3) Subject to the Income Tax Regulations under the Income Tax Act (Canada) and subject to the regulations, for the purposes of calculating the amount of a judge’s contributions required to be made under subsection (1), a judge who receives only a portion of the judge’s salary in relation to any pay period shall be deemed to have received the full salary for that pay period.

5(4) For the purposes of calculating a benefit under this Act or the regulations, the maximum length of pensionable service of a judge that may be used in the calculation, whether the recipient of the benefit is the judge, the spouse, child or estate of the judge or the legal representative of any of them, is 23.63 years.

Payments into and out of Fund

6(1) In this section

"surplus" means, in relation to the Fund, an amount of assets in the Fund at a given time that is greater than the total actuarial liability in the Fund at that time, established on a going concern or on a solvency basis, whichever basis provides a greater amount, as determined by the actuary appointed for the Plan by the Minister.

6(2) Subject to subsections (3) and (4), the Minister shall, at the request of the Board of Management, pay out of the Consolidated Fund into the Fund

(a) the amount, determined by an actuarial valuation approved by the Chairman of the Board of Management, that is necessary, in addition to the contributions paid by judges, to cover current service cost in relation to benefits payable under Part III, and

(b) such additional amounts as are required to amortize any unfunded liability in relation to benefits payable under Part III, in equal annual installments over a period determined by the Minister, beginning on the date of the actuarial valuation that establishes the unfunded liability.

6(3) Amounts referred to in subsection (2) shall not exceed eligible contributions as provided for in subsection 147.2(2) of the Income Tax Act (Canada).

6(4) If at any time there is a surplus in the Fund, the Minister, at the request of the Board of Management, may

(a) reduce the amount of any payments or stop making any payments that are required to be made into the Fund under subsection (2), until such time as there is no longer a surplus in the Fund, and

(b) withdraw amounts of money from the Fund, until such time as there is a surplus in the Fund that is not less than ten per cent of the amount of the going concern liabilities.

6(5) If the Plan should be wound-up and there is a surplus in the Fund at that time, the surplus shall be

(a) distributed first in paying the supplementary allowances, reduced supplementary allowances, other supplementary payments and disability benefits provided for in Part IV, and

(b) after payment under paragraph (a), retained by the Province.

6(6) If at any time the amount of money in the Fund is insufficient to make all payments required to be made under Part III, and all benefit payments under the Provincial Court Act except payments referred to in subsection 21(4) of this Act, the Minister shall, at the request of the Board of Management, pay out of the Consolidated Fund into the Fund an amount sufficient to enable the payments to be made.

Returns of contributions

7(1) A judge who ceases to hold office and, at that time, is not entitled to be paid any annual pension under this Act and is not entitled to be paid any annuity under the Provincial Court Act shall be paid a sum of money equal to all contributions that the judge may have made under subsection 15(7) of the Provincial Court Act to the fund referred to in that subsection before the date on which subsection 5(1) of this Act comes into force, and all contributions that the judge has made in relation to the Plan under subsection 5(1) of this Act, together with interest on the amount so contributed by the judge from time to time.

7(2) If a judge dies and, at the date of death, would not have been entitled to be paid any annual pension under this Act and would not have been entitled to be paid any annuity under the Provincial Court Act, the sum of money referred to in subsection (1) shall be paid

(a) to any surviving spouse of the judge who can be found, if the surviving spouse would have been entitled to the surviving spouse’s pension under section 9, or to a surviving spouse’s annuity under the Provincial Court Act, had the judge been entitled to be paid an annual pension under this Act or an annuity under the Provincial Court Act on the date of death,

(b) if no person can be paid under paragraph (a), in equal shares to any children of the judge who can be found, or

(c) if no person can be paid under paragraph (a) or (b), to the estate of the judge.

7(3) Subsections 9(8) and (9) and 10(1) and (2) apply with the necessary modifications in circumstances described in subsection (2).

PART III

PROVINCIAL COURT JUDGES’ REGISTERED PENSION PLAN

Judges’ annual pensions

8(1) An annual pension calculated in accordance with subsection (2) shall be paid to a judge who

(a) on the date of the judge’s retirement, has at least two years of pensionable service and is at least sixty, or

(b) when a benefit is to begin to be paid to the judge under subsection 5(2), has at least two years of pensionable service.

8(2) The amount of an annual pension to be paid to a judge under subsection (1) shall be two per cent of the product of the number of the judge’s years, including parts of a year, of pensionable service and the judge’s average salary during those years.

8(3) Subject to subsection 5(2) and section 28, an annual pension to be paid to a judge under this section begins on the day of the judge’s retirement.

Surviving spouse’s pension

9(1) Subject to subsections (8) and (9) and section 28, the surviving spouse of a judge is immediately entitled, on the judge’s death, to be paid a surviving spouse’s pension calculated in accordance with subsection (3), (4), (5), (6) or (7), as the case may be, if the judge, at that time

(a) was an active judge who had at least two years of pensionable service and was not at least sixty-five,

(b) was being paid a disability benefit,

(c) was an active judge who had at least two years of pensionable service and was at least sixty-five, but was not yet being paid an annual pension,

 

(d) had elected an entitlement to, but was not yet being paid, a deferred pension, or

 

(e) was being paid an annual pension.

 

9(2) Subject to sections 10, 11 and 28, a surviving spouse’s pension ceases upon that surviving spouse’s death.

9(3) The amount of a surviving spouse’s pension to be paid to the surviving spouse of a judge referred to in paragraph (1)(a) shall be fifty per cent of the annual pension that would have been payable to the judge if the judge had continued in service as a judge to the age of sixty-five, calculated using the judge’s average salary as of the date of the judge’s death.

9(4) The amount of a surviving spouse’s pension to be paid to the surviving spouse of a judge referred to in paragraph (1)(b) shall be fifty per cent of the annual pension that would have been payable to the judge if the judge had continued to be paid a disability benefit to the age of sixty-five.

 

9(5) The amount of a surviving spouse’s pension to be paid to the surviving spouse of a judge referred to in paragraph (1)(c) shall be fifty per cent of the annual pension that would have been payable to the judge if the judge had retired on the date of the judge’s death.

9(6) The amount of a surviving spouse’s pension to be paid to the surviving spouse of a judge referred to in paragraph (1)(d) shall be fifty per cent of the deferred pension that would have been payable to the judge under subsection 15(2) when payment of the deferred pension would have begun to be paid, including any annual adjustment as provided for under section 25 between the date on which the judge began retirement and the date of the judge’s death.

9(7) Subject to section 11, the amount of a surviving spouse’s pension to be paid to the surviving spouse of a judge referred to in paragraph (1)(e) shall be fifty per cent of the annual pension being paid to the judge on the date of the judge’s death.

9(8) Notwithstanding anything else in this Act, if a judge who is being paid an annual pension dies, no person is entitled to be paid the judge’s surviving spouse’s pension unless the person was the spouse of the judge on the date when the annual pension began to be paid to the judge.

 

9(9) If two or more persons claim the surviving spouse’s pension under this section and one of those persons is a spouse because that person was legally married, other than in a void or voidable marriage, to the judge on the date of the judge’s death or, in a case described in subsection (8), on the date when an annual pension began to be paid to the judge, that spouse is entitled to the surviving spouse’s pension under subsection (1), if otherwise eligible and subject to subsections 26(4) and (6), unless there is a valid written agreement between the judge and that spouse, or a decree, order or judgment, that bars that spouse’s claim.

 

 

Dependent children’s pension

10(1) Subject to subsection 11(9), if a judge described in subsection 9(1) does not leave a surviving spouse or if a surviving spouse’s pension is not payable or ceases to be payable to the judge’s surviving spouse, a dependent children’s pension equal to the surviving spouse’s pension that was being or could have been paid under section 9 shall be paid in equal shares to the judge’s dependent children.

10(2) A dependent children’s pension shall be paid to the person having custody and control of the child but, where there is no such person, it shall be paid to the child or to another person designated by the Minister.

10(3) A dependent children’s pension ceases to be payable

(a) in the case of a child described in paragraph (a) of the definition "dependent child", when the child becomes nineteen,

(b) in the case of a child described in paragraph (b) of the definition "dependent child", when the child becomes twenty-five or ceases to be in full-time attendance at an educational institution, whichever occurs first, or

 

(c) in the case of a child described in paragraph (c) of the definition "dependent child", whether or not the child is also described in paragraph (a) or (b) of that definition, when the child ceases to be dependent because of any mental or physical infirmity, or dies, whichever occurs first.

Election of judge with spouse

11(1) If a judge has a spouse at the time when payments of an annual pension under section 8 or subsection 13(1) are to begin to be made to the judge, or at the time when a notice of election is delivered to the Minister as provided for in subsection 14(5) or 15(6), the judge may at that time elect to be paid an annual pension, in accordance with subsection (10), in an amount that is less than the amount payable to the judge, in which case the amount of any annual pension payable to the judge’s surviving spouse shall be increased in accordance with subsections (2) and (3).

11(2) A judge electing a reduced pension under subsection (1) may elect an increased surviving spouse’s pension in an amount that is sixty per cent, sixty-six and two-thirds per cent, seventy-five per cent or one hundred per cent of the amount of the reduced annual pension that the judge elects to be paid.

11(3) The amount of the reduced annual pension of a judge and of the increased annual pension of the judge’s surviving spouse in total shall be the actuarial equivalent of the total amount of the annual pensions that the judge and the surviving spouse would or could have been paid if the election had not been made.

11(4) A judge making an election to be paid a reduced annual pension under this section may, at that same time, also elect to have guaranteed payments made in accordance with subsections (5) to (9) to the judge’s surviving spouse and estate during a period of five, ten or fifteen years after the payments of the reduced pension are to begin to be made to the judge, as selected by the judge.

 

11(5) If a judge makes an election under subsection (4), the amount of the reduced annual pension of the judge, of the increased annual pension of the judge’s surviving spouse and of any payment that might be made to the judge’s estate in total shall be the actuarial equivalent of the total amount of the annual pension that the judge and the judge’s surviving spouse would or could have been paid if the election had not been made.

11(6) If a judge elects to be paid a reduced annual pension under subsection (4) and dies during the guarantee period of five, ten or fifteen years selected by the judge, any surviving spouse of the judge who would be entitled to receive a surviving spouse’s pension under section 9 is entitled to receive, instead of that surviving spouse’s pension, an annual pension

(a) until the guarantee period expires, in the same amount as the judge was receiving on the day of the judge’s death, and

(b) after the guarantee period expires, for the spouse’s lifetime in the increased amount determined in accordance with subsection (5).

 

11(7) If a judge elects to be paid a reduced annual pension under subsection (4) and both the judge and the judge’s spouse die during the guarantee period selected by the judge, the judge’s estate shall be paid a lump sum equal to the actuarial equivalent of the balance of the reduced annual pension payments that the judge or, if the judge’s spouse survives the judge, the judge’s spouse, would have been paid during the remainder of the selected guarantee period if the judge and the judge’s spouse had not died during that period.

 

11(8) If a judge elects to be paid a reduced annual pension under subsection (4) and both the judge and the judge’s spouse die after the end of the guarantee period selected by the judge, no payments shall be made to the judge’s estate under subsection (7).

 

11(9) Notwithstanding anything else in this Act, if a judge elects to be paid a reduced annual pension under subsection (1) or (4), no dependent child of the judge is entitled to be paid a dependent children’s pension on the death of the judge or the judge’s surviving spouse.

 

11(10) Notice of any election under this section

 

(a) shall be made in writing, shall indicate the amount of the judge’s reduced annual pension and of the increased surviving spouse’s pension and shall be signed by the judge,

(b) subject to subsections 14(5) and 15(6), shall be delivered to the Minister between sixty days and ten days, inclusive, before the date on which the entitlement or requirement to be paid the annual pension begins,

 

(c) is not effective unless it is delivered to the Minister within the time period described in paragraph (b), or as provided for in subsection 14(5) or 15(6), as the case may be, and

(d) is irrevocable.

11(11) A judge who elects to be paid a reduced annual pension under this section is not entitled to re-elect to be paid a different reduced annual pension or an unreduced annual pension at any other time.

 

Election of judge with no spouse and no dependent child

12(1) A judge who, at the time when payments of an annual pension under section 8 or subsection 13(1) are to begin to be paid to the judge, or at the time when a notice of election is delivered to the Minister as provided for in subsection 14(5) or 15(6), has no spouse and no dependent child may at that time elect to be paid a lifetime annual pension, in accordance with subsection (5), in an amount that is less than the amount payable to the judge under section 8 or subsection 13(1), 14(1) or 15(2), in which case a payment under subsection (2) shall be guaranteed to the judge’s estate during the period of five, ten or fifteen years after the payments of the reduced pension are to begin to be made to the judge, as selected by the judge.

 

12(2) If a judge elects to be paid a reduced annual pension under this section and dies before the expiry of the guarantee period of five, ten or fifteen years selected by the judge, the judge’s estate shall be paid a lump sum equal to the actuarial equivalent of the balance of the reduced annual pension payments that would have been paid to the judge during the remainder of the selected guarantee period if the judge had not died during that period.

 

12(3) The amount of a reduced annual pension to be paid to a judge making an election under this section and of the payment to the judge’s estate in total shall be the actuarial equivalent of the total amount of the payments that would have been made to the judge during the judge’s lifetime if the election had not been made.

12(4) If a judge elects to be paid a reduced annual pension under this section and dies after the end of the guarantee period of five, ten or fifteen years selected by the judge, no payment shall be made to the judge’s estate under subsection (2).

 

12(5) Notice of an election under subsection (1)

(a) shall be made in writing, shall indicate the amount of the judge’s reduced annual pension and the period during which payment to the judge’s estate is guaranteed, and shall be signed by the judge,

(b) subject to subsections 14(5) and 15(6), shall be delivered to the Minister between sixty days and ten days, inclusive, before the date on which the entitlement or requirement to be paid the annual pension begins,

 

(c) is not effective unless it is delivered to the Minister within the time period described in paragraph (b), or as provided for in subsection 14(5) or 15(6), as the case may be, and

(d) is irrevocable.

12(6) A judge who elects to be paid a reduced annual pension under this section is not entitled to re-elect to be paid a different reduced annual pension or an unreduced annual pension at any other time.

 

Disability pension

13(1) Subject to subsection 5(4), subsection (2) and section 28, an inactive judge who is being paid a disability benefit shall, when becoming sixty-five,

(a) begin retirement,

(b) cease to be paid the disability benefit, and

 

(c) be paid an annual disability pension in the amount of two per cent of the product of the number of years, including parts of a year, of pensionable service that the judge would have had, if he or she had continued in service as a judge until becoming sixty-five, and the judge’s average salary during the judge’s years of pensionable service.

 

 

13(2) For the purposes of a calculation under paragraph (1)(c), the judge’s average salary shall be adjusted in accordance with section 25, with the necessary modifications, from the date when the judge ceased to perform the duties of the position or office of a judge as a result of becoming disabled, until the date when the judge became sixty-five, inclusive, using the indexes and multipliers that would have been used to adjust a benefit during the years in question.

13(3) Notwithstanding anything else in this Act except subsection (4), a disability pension under this section is payable instead of any other annual pension and an inactive judge who is paid a disability pension is not entitled to be paid any other annual pension at any other time.

 

13(4) A judge may, at the time when payments of a disability pension to the judge are to begin to be made, make an election under section 11 or 12 by delivering to the Minister a notice of election under and in accordance with subsection 11(10) or 12(5), as applicable.

Early retirement

14(1) Subject to section 28, a judge who has at least two years of pensionable service and ceases to be an active judge before becoming sixty may elect to retire and be paid an annual pension, in accordance with subsection (2), beginning on the date of retirement, in which case the judge’s annual pension shall be the amount that would have been payable to the judge under section 8 if the annual pension had not begun until the judge became sixty, reduced by three-twelfths of one per cent for each calendar month from the calendar month following the calendar month in which the judge actually began retirement, to and including the calendar month before the calendar month in which the judge would become sixty.

 

 

14(2) Notice of an election under subsection (1)

(a) shall be made in writing, shall indicate the date on which the judge intends to retire and shall be signed by the judge,

(b) subject to subsections (3) and 15(7), shall be delivered to the Minister between sixty days and ten days, inclusive, before the date on which the judge’s retirement begins,

(c) subject to subsection 15(7), is not effective unless it is delivered to the Minister within the time period described in paragraph (b), or before a deadline referred to in subsection (3) is past, as the case may be, and

(d) is irrevocable.

14(3) A notice of election that is made under this section by a judge who ceases to be an active judge because he or she has been removed from office as a judge shall be delivered to the Minister not more than sixty days after all opportunities for appeal of the removal from office have been exhausted.

 

14(4) Subject to subsection (5), an annual pension payable under subsection (1) is payable instead of any other annual pension and a judge who elects to be paid an annual pension under subsection (1) is not entitled to be paid any other annual pension at any other time.

 

14(5) A judge may, at the same time as a notice of election is delivered to the Minister in accordance with subsection (2), make an election under section 11 or 12 by delivering to the Minister a notice of election under and in accordance with subsection 11(10) or 12(5), as applicable.

Deferred pension

15(1) Subject to section 28, a judge who has at least two years of pensionable service and ceases to be an active judge before becoming sixty may elect to retire and be paid a deferred pension beginning when the judge is sixty.

 

 

15(2) The amount of a deferred pension shall be two per cent of the product of the number of the judge’s years, including parts of a year, of pensionable service, and the judge’s average salary during those years.

15(3) Notice of an election under subsection (1)

(a) shall be made in writing, shall indicate the date on which the judge intends to retire and shall be signed by the judge,

(b) subject to subsection (4), shall be delivered to the Minister between sixty days and ten days, inclusive, before the date on which the judge’s retirement begins,

(c) is not effective unless it is delivered to the Minister within the time period described in paragraph (b), or before a deadline referred to in subsection (4) is past, as the case may be, and

(d) subject to subsections (6) and (7), is irrevocable.

15(4) A notice of election that is made under this section by a judge who ceases to be an active judge because he or she has been removed from office as a judge shall be delivered to the Minister not more than sixty days after all opportunities for appeal of the removal from office have been exhausted.

 

15(5) Subject to subsections (6) and (7), a judge who elects an entitlement to be paid a deferred pension is not entitled to be paid any other annual pension and is not entitled to be paid a disability benefit.

15(6) A judge who has elected an entitlement to be paid a deferred pension may, at the time when payments of the deferred pension are to begin to be paid, make an election under section 11 or 12 by delivering to the Minister a notice of election under and in accordance with subsection 11(10) or 12(5), as applicable.

15(7) A judge who has elected an entitlement to be paid a deferred pension may, before the deferred pension begins to be paid, change the election and elect to be paid an annual pension under subsection 14(1), but payments of the annual pension elected under that subsection shall not be made retroactively.

Application of sections 8 to 15

16 Sections 8 to 15 do not apply

(a) to a judge appointed after June 18, 1969, the judge’s surviving spouse, dependent child and estate and the legal representative of any of them, if the judge has not filed a certificate of a qualified medical practitioner in accordance with the General Regulation - Provincial Court Act, certifying that the judge is physically able to carry out the normal functions of the judge’s office, and

(b) to a surviving spouse of a judge who dies within two years after the date of the marriage if the Minister is not satisfied that the judge on the date of the marriage was in such a condition of health as to justify him or her in expecting to survive for at least two years.

Maximum benefit payable

17 Notwithstanding anything else in this Part, the total amount of any annual benefit payable in any year to a person under this Part shall not exceed an amount allowable under section 8503 of the Income Tax Regulations under the Income Tax Act (Canada), or such other amount that is established as the defined benefit limit under that Act in its stead, for the calendar year in which payment of the benefit begins.

PART IV

SUPPLEMENTARY ALLOWANCES, OTHER
SUPPLEMENTARY PAYMENTS AND DISABILITY BENEFITS

Supplementary allowances of judges

18(1) A judge who becomes and is inactive and is entitled to be paid an annual pension is entitled, on the date when payment of the annual pension begins, to be paid an annual supplementary allowance in an amount equal to three-quarters of one per cent of the product of the number of the judge’s years, including parts of a year, of pensionable service, and the judge’s average salary during those years.

18(2) Notwithstanding anything else in Part III or in this Part, the total amount of the annual pension that a judge is entitled to be paid under Part III on the date of the judge’s retirement, when combined with the total of the annual supplementary allowances and other annual supplementary payments that the judge is entitled to be paid on that date under this Part, shall not exceed sixty-five per cent of the judge’s average salary.

 

Reduced supplementary allowances

19 If a judge’s annual pension is reduced under section 11, 12 or 14, the corresponding supplementary allowance shall be reduced in the same manner.

Disability benefits

20(1) Subject to section 13 and to subsections (2) and (3), a judge who has at least two years of pensionable service and, as the result of becoming disabled, ceases to be an active judge and to perform the duties of the position or office of a judge, shall, during the period when the judge is disabled, be paid an annual disability benefit in the amount of sixty per cent of the salary being paid to the judge on the date on which the judge becomes entitled to be paid the benefit under subsection (2).

 

20(2) Subject to section 28, a judge is not entitled to be paid a disability benefit and no disability benefit shall be paid to a judge until all of the sick leave that the judge has accumulated, earned or been granted under section 16 of the General Regulation - Provincial Court Act has been taken by the judge.

 

20(3) Subject to section 13 and to subsection (4), a disability benefit under this section is payable instead of any annual pension, and an inactive judge who is paid a disability benefit under this section is not entitled to be paid any annual pension at any other time.

 

20(4) An inactive judge who is being paid a disability benefit and who again becomes an active judge and ceases to be paid the disability benefit before beginning to be paid a disability pension is entitled to be paid an annual pension under other sections of this Act, if otherwise qualified to be paid such other annual pension.

 

20(5) Notwithstanding the definition "pensionable service" and any other provision of this Act, but subject to subsections 5(2) and (4), if an active judge referred to in subsection (4) becomes entitled to be paid an annual pension, other than a disability pension, under any section of this Act, the period during which the judge was inactive and receiving a disability benefit shall be included in determining the length of the judge’s pensionable service for the purpose of calculating the amount of the annual pension that the judge is entitled to be paid.

20(6) An inactive judge who is being paid a disability benefit is not required to make contributions in relation to the Plan under subsection 5(1).

 

Payments out of Consolidated Fund

21(1) Supplementary allowances and reduced supplementary allowances, including any payments to the spouses, children or estates of judges or any legal representative made because of the operation of section 23, and all returns of contributions that were not deductible contributions, as provided for in subsection 147.2(4) of the Income Tax Act (Canada) and in paragraph 8503(4)(a) of the Income Tax Regulations under that Act, and that were paid into the Consolidated Fund, shall be paid out of the Consolidated Fund.

 

 

21(2) If full payment of a benefit cannot be made under Part III because of the application of a provision of the Income Tax Act (Canada) or the Income Tax Regulations under that Act, the portion that cannot be paid shall be paid as a supplementary payment out of the Consolidated Fund, beginning on the date when the judge both becomes inactive and begins to be paid the benefit, and continuing while the judge both remains inactive and is being paid the benefit.

 

 

21(3) Disability benefits shall be paid out of the Consolidated Fund.

21(4) If full payment of a benefit, as defined in the Provincial Court Act, cannot be made under that Act because of the application of a provision of the Income Tax Act (Canada) or the Income Tax Regulations under that Act, the portion that cannot be paid shall be paid out of the Consolidated Fund.

 

 

Delay in entitlement to supplementary allowances and other supplementary
payments

22(1) Notwithstanding anything else in this Act, if an active judge, as required under subsection 5(2), has been paid any portion of an annual pension to which the judge is entitled under Part III while remaining active, the judge and any other persons who would, but for the operation of this subsection, be entitled under this Part to be paid any supplementary allowance or any other supplementary payment beginning when the judge becomes inactive or dies, are not entitled to be paid any such supplementary allowance or other such supplementary payment

 

(a) if the judge becomes inactive before dying, until the total amount of the supplementary allowances and any other supplementary payments that the judge, other persons or both would have been entitled to be paid under this Part, but for the operation of this subsection, is equal to the total amount of the annual pension paid to the judge before the judge became inactive, or

(b) if the judge dies before becoming inactive, until the total amount of the supplementary allowances and any other supplementary payments that the other persons would have been entitled to be paid under this Part, but for the operation of this subsection, is equal to the total amount of the annual pension paid to the judge before the judge died.

22(2) For the purposes of calculating the total amounts of supplementary allowances and other supplementary payments under subsection (1), the supplementary allowances and other supplementary payments shall be as adjusted annually in accordance with section 25.

Application of Part III to supplementary allowances and other supplementary payments under Part IV

23 Except as otherwise provided in this Part, supplementary allowances, reduced supplementary allowances and other supplementary payments under this Part shall be paid at the same time, to the same judges, to their same spouses, children and estates and to the legal representatives of any of them, in the same circumstances and manner and under the same terms and conditions as the corresponding annual pensions, surviving spouse’s pensions, dependent children’s pensions and other benefits are or would be payable under Part III, and the provisions of Part III apply, with the necessary modifications, in relation to the payment of those supplementary allowances, reduced supplementary allowances and other supplementary payments.

 

Application of section 36 and regulations to supplementary allowances, other supplementary payments and disability benefits under Part IV

24 Section 36 and any regulations made under section 36 apply with the necessary modifications to supplementary allowances, reduced supplementary allowances, other supplementary payments and disability benefits paid to judges, the spouses, children and estates of judges and the legal representatives of any of them, as the case may be, under this Part.

 

PART V

GENERAL PROVISIONS

Annual adjustments

25(1) In this section

"benefit index" means, for each year, the average of the Consumer Price Index for the twelve month period ending June thirtieth in the year preceding that year, unless the average is less than 1.01 times the benefit index for the preceding year, in which case the benefit index for the year means the benefit index for the preceding year;

 

"Consumer Price Index" means the Consumer Price Index for Canada published under the authority of the Statistics Act (Canada).

 

25(2) The amount of any benefit payment made under this Act shall be adjusted as of the first day of each year, beginning on January 1, 2000, by multiplying the amount of the benefit payable for the previous year by the ratio that the benefit index for that year bears to the benefit index for the previous year, or 1.05, whichever is the lesser.

 

25(3) Notwithstanding subsection (2), if the first adjustment under that subsection results in an increase in the amount of a benefit payment, the amount of that increase shall be reduced by multiplying it by a fraction having a denominator of twelve and a numerator equal to the number of months, in the year preceding the year in which the first adjustment is made, that follow the month in which the judge to whom the benefit payment relates, as the case may be,

 

(a) became disabled and entitled to be paid a disability benefit,

(b) ceased to hold office,

(c) died, or

(d) becomes or would have become sixty-five when subsection 13(1) applies.

Division of benefits on marriage breakdown

26(1) In this section

"benefit" means an annual pension, a return of contributions or any supplementary allowance or supplementary payment under Part IV, but does not include a surviving spouse’s pension or a disability benefit payable to the judge whose benefit is to be divided under this section, or a payment referred to in subsection 21(4).

 

26(2) Notwithstanding anything else in this Act except subsections (7) and 37(15), if a competent tribunal makes a decree, order or judgment on or after the date on which this Act receives Royal Assent, in relation to the division on marriage breakdown of a benefit that an active or inactive judge is or may be entitled to under this Act, the commuted value of the benefit shall be determined in accordance with the regulations as of the date of marriage breakdown and shall be divided in accordance with the decree, order or judgment of the tribunal.

26(3) The portion of the benefit to which a spouse of an active or inactive judge is entitled under a decree, order or judgment referred to in subsection (2) shall be dealt with in accordance with the regulations.

26(4) If a benefit has been divided under subsection (2), the benefit of the active or inactive judge shall be revalued in accordance with the regulations and the spouse has no further right

(a) to a division of any other benefit of the active or inactive judge,

(b) to a surviving spouse’s pension under section 9 with respect to the active or inactive judge, or any other benefit or amount payable to the spouse under this Act by virtue of being the spouse of the active or inactive judge, or

 

(c) in relation to the Plan under this Act.

 

26(5) Notwithstanding anything else in this Act except subsections (7) and 37(15), if a written agreement in settlement of rights arising as a consequence of marriage breakdown is entered into on or after the date on which this Act receives Royal Assent and provides for the division on marriage breakdown of a benefit that an active or inactive judge is or may be entitled to under this Act, the commuted value of the benefit shall be determined as of the date of marriage breakdown in accordance with the regulations and shall be divided in accordance with the written agreement.

26(6) Subsections (3) and (4) apply with the necessary modifications to a division of a benefit under subsection (5).

26(7) If the Minister establishes or approves a method for determining the commuted value of a benefit that is different from the method established under the regulations, the value determined by the method established or approved by the Minister shall prevail.

26(8) Notwithstanding anything else in this section, a division of a benefit under this section shall not result in a reduction of the commuted value of the benefit of an active or inactive judge by more than fifty per cent.

26(9) A division of a benefit under this section applies only in relation to a benefit accrued between the date of marriage and the date of marriage breakdown.

26(10) A division of a benefit under this section is limited by any restrictions under this Act in relation to the payment of money out of the Fund or the Consolidated Fund under this Act.

 

Cessation of payments on death of judge

27 Subject to sections 7, 9 and 10, subsections 11(1) and (4) and 12(1) and sections 28 and 38, an annual pension, a disability benefit and any other benefit paid or payable to a judge cease to be paid or payable on the death of the judge.

 

Payment in arrears

28 If a benefit, other than a return of contributions, becomes payable under this Act, it shall be paid in equal monthly installments in arrears and shall continue, unless otherwise provided for in this Act, during the lifetime of the recipient, until the end of the month in which the recipient dies and any amount of the monthly installment in arrears that remains unpaid on the date of the recipient’s death shall be paid

(a) if the recipient was a judge, to the judge’s surviving spouse who is entitled to the surviving spouse’s pension under section 9, if any can be found,

(b) if no person can be paid under paragraph (a), in equal shares to any children of the recipient who can be found, or

(c) if no person can be paid under paragraph (a) or (b), to the estate of the recipient.

 

Suspension of benefit

29(1) In this section

"full time employment" means full time employment as defined in the Public Service Superannuation Act;

"Public Service" means Public Service as defined in the Public Service Superannuation Act.

 

29(2) Subject to subsection 5(2), a judge’s entitlement to be paid a benefit is suspended while the judge

(a) is employed in full time employment in the Public Service,

(b) is not employed in full time employment in the Public Service, but is required to participate in a pension plan sponsored by the Province in respect of the person’s employment,

(c) has resumed service as an active judge, other than as a person selected to act as and exercise the powers of a judge under subsection 4.3(2) of the Provincial Court Act,

 

(d) is a judge who is subject to the Judges Act (Canada),

(e) is a senator of Canada,

(f) is a member of the Legislative Assembly of New Brunswick,

(g) is a member of the House of Commons of Canada,

(h) is the Lieutenant-Governor of New Brunswick,

(i) is the Governor-General of Canada, or

(j) holds any other office, position or employment prescribed by regulation for the purposes of this section.

Designation of person to manage recipient’s affairs

30 If a recipient of a benefit is unable to manage his or her own affairs for any reason, the Minister may designate a proper person to receive payment on the recipient’s behalf of any amount that is payable to him or her under this Act.

 

Prohibition respecting rights

31 No right of a person under Part III or Part IV is capable of being assigned, charged, anticipated, given as security or surrendered and, for the purposes of this section,

(a) assignment does not include

(i) assignment under a decree, order or judgment of a competent tribunal or a written agreement in settlement of rights arising as a consequence of the breakdown of a marriage between an individual and the individual’s spouse or former spouse, or

(ii) assignment by the legal representative of a deceased individual on the distribution of the individual’s estate, and

(b) surrender does not include a reduction in benefits to avoid the revocation of the registration under the Income Tax Act (Canada) of the pension plan provided for in Part III.

 

Construction of provisions respecting limitations on types of benefits that may be paid

32 No provision of this Act that prevents a judge who has elected or is being paid a particular type of benefit from being paid any other particular type of benefit, shall be construed so as to prevent the judge from being paid a surviving spouse’s pension or any other benefit or amount payable to the judge by virtue of being the surviving spouse of another judge.

 

PART VI

ADMINISTRATION

Administration of Act

33 The Minister shall administer this Act and may designate persons to act on the Minister’s behalf.

Annual report by Minister

34 Each year the Minister shall lay before the Legislative Assembly a report on the administration of this Act during the preceding fiscal year, which report shall include

(a) a statement showing the number of persons being paid benefits under Part III and the amounts paid into and out of the Fund during that fiscal year, and

 

(b) a statement showing the number of persons being paid supplementary allowances, reduced supplementary allowances, other supplementary payments and disability benefits under Part IV and the amount paid into and out of the Consolidated Fund in relation to those allowances, other payments and benefits during that fiscal year.

 

PART VII

SERVICE OF DOCUMENTS

Service of documents

35(1) Any notice or other document to be served by the Minister on a person under this Act or the regulations may be served by personal service or by being deposited in the mail in an envelope with postage prepaid, addressed to the person at the person’s address as shown by the records of the Minister.

35(2) A notice or other document referred to in subsection (1) shall be deemed to be served five days after the deposit of the notice or other document in the mail.

35(3) Proof of service in either manner provided for in subsection (1) may be made by a certificate or an affidavit purporting to be signed by any employee of the Department of Finance, naming the person on whom service was made and specifying the time, place and manner of the service.

 

35(4) A document that purports to be a certificate or affidavit of an employee of the Department of Finance to the effect that the service was made in the manner provided for in subsection (1)

(a) shall be admissible in evidence without proof of the signature, and

 

(b) is, in the absence of evidence to the contrary, proof that the person named in the certificate or affidavit was served with the notice or document referred to in the certificate or affidavit.

35(5) In any proceeding relating to a benefit under this Act, when proof of service is made as provided for in subsection (3), the burden of proving that a person is not the person named or referred to in the certificate or affidavit shall be upon the person so alleging.

 

PART VIII

REGULATIONS

Regulations

36(1) The Lieutenant-Governor in Council may make regulations

(a) establishing an interest rate or interest rates for the various purposes of this Act and the regulations, or adopting for any of those purposes an interest rate or interest rates established under another Act of the Province;

(b) respecting the funds and the accounts into which contributions or payments of judges, the Minister and other persons are to be made;

 

(c) respecting requirements in relation to contributions or payments, the amounts of contributions or payments, the portion of contributions or payments to be paid into and out of funds and accounts, and the manner of payment into and out of funds and accounts, for the various purposes of this Act and the regulations;

 

 

(d) respecting the nature of the evidence required to establish proof of age, death, spousal status or parentage for the purposes of this Act and the regulations, the time within which such evidence is to be provided and the consequences of any failure to provide such evidence within that time;

(e) respecting the determination of the commuted value of a benefit for the purposes of section 26;

(f) respecting the circumstances and manner in which the portion of the benefit to which a spouse of an active or inactive judge is entitled under section 26, may be dealt with, including, without limiting the foregoing, the types of instruments to which the portion may be transferred and the types of instruments that may be purchased with the portion;

 

(g) respecting the revaluation of benefits for the purposes of section 26;

(h) defining "pensionable service" for the purposes of section 26 or the regulations;

(i) respecting any other matter relating to a benefit to be divided on marriage breakdown;

(j) prescribing any office, position or employment for the purposes of section 29;

(k) respecting forms for the purposes of this Act and the regulations;

(l) defining any word or expression used but not defined in this Act;

(m) prescribing anything required by this Act to be prescribed;

(n) generally for the better administration of this Act.

36(2) A regulation under subsection (1) may be made retroactive to April 1, 1998, or to any date after April 1, 1998.

PART IX

TRANSITIONAL PROVISIONS

Transitional provisions

37(1) In this section

"benefit", when used with reference to the Provincial Court Act, means a benefit as defined in that Act;

"financial loss" means a positive amount determined by subtracting the amount paid as a benefit, with interest, to a judge, the spouse, child or estate of a judge or the legal representative of any of them, as the case may be, under the Provincial Court Act in the period between April 1, 1998 and the date when an election of a benefit under subsection (10) becomes effective, inclusive, from the amount that would have been paid during that period, with interest, to the judge, spouse, child, estate or legal representative, as the case may be, if

(a) this Act had both received Royal Assent and come into force on April 1, 1998, inclusive, and

(b) the judge, spouse, child, estate or legal representative, as the case may be, had been entitled to elect and had elected the benefit under this Act during that period.

 

37(2) The provisions of the Provincial Court Act relating to benefits do not apply to a judge appointed as a judge on or after the date on which this Act receives Royal Assent, and no such judge, the spouse, child or estate of such judge or the legal representative of any of them, shall be paid any benefit under that Act.

 

37(3) Subject to subsections (5), (13), (15) and (16), a judge appointed as a judge on or before the date on which this Act receives Royal Assent, the spouse, child or estate of such a 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, upon 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 upon 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, 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, 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.

 

37(4) Subject to subsection (10) and paragraph (15)(c), if a judge, the spouse, 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, 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.

 

 

 

 

37(5) A judge who has ceased to make contributions to the Fund as provided for under subsection 5(1) or (2) or who has made an election under subsection 11(1) or (4), 12(1), 14(1) or 15(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.

 

 

37(6) Subject to subsections (5), (15) and (16), when an event referred to in subsection (3) occurs

 

(a) the Minister shall determine whether the judge, spouse, 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 forthwith serve the judge, spouse, 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, 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 (7) to be paid a benefit under the other Act.

 

37(7) Subject to subsections (5), (15) and (16), a judge, spouse, 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 (6) 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, child or legal representative, as the case may be, and

(c) shall be delivered to the Minister not more than thirty days after the judge, spouse, child or legal representative is served with the Minister’s notice.

37(8) The Minister may, in circumstances considered appropriate by the Minister, extend the thirty day deadline.

37(9) A notice of election under subsection (7)

(a) is not effective unless it is delivered to the Minister before the thirty day deadline or the extended deadline, as the case may be, is past, and

(b) is irrevocable.

37(10) Subject to subsection (13), if a judge, the spouse, child or estate of a judge or the legal representative of any of them has begun to be paid a benefit under the Provincial Court Act between April 1, 1998, and the date on which this Act receives Royal Assent, inclusive, that judge, spouse, child, estate or legal representative, as the case may be,

 

(a) may elect to be paid any benefit to which the judge, spouse, child, estate or legal representative would have been entitled under this Act if this Act had both received Royal Assent and come into force on April 1, 1998, instead of the benefit being paid under the Provincial Court Act, other than electing an entitlement to be paid a reduced pension under section 11 or 12, and

 

(b) shall be compensated out of the Fund, the Consolidated Fund or both, as the case may be, for any financial loss that the judge, spouse, child, estate or legal representative incurred.

 

37(11) Without limiting subsection 10, the spouse, child or estate of a judge who has died between April 1, 1998 and the date when an election of a benefit under subsection (10) becomes effective, inclusive, or the legal representative of any of them, as the case may be, if entitled under this Act to be paid a benefit resulting from the death of the judge, is entitled to make an election and be compensated under subsection (10) for any financial loss that the judge may have incurred while alive during that period.

 

37(12) A judge, spouse, child, estate or legal representative who wishes to make an election under subsection (10) shall deliver a notice of election to the Minister within ninety days after the date on which this Act receives Royal Assent, and subsections (7) to (9) apply with the necessary modifications to the election and the giving of the notice.

 

37(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 the date on which this Act receives Royal Assent, the spouse, 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 5(2) in relation to any time before the date on which this Act receives Royal Assent, 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 the conduct of any other matter in relation to the division of a benefit on marriage breakdown, 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 the date on which this Act receives Royal Assent.

 

 

37(14) A judge to whom paragraph 5(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 III in the period between April 1, 1998 and the date on which this Act receives Royal Assent, inclusive, if paragraph 5(2)(a) had come into force and this Act had received Royal Assent on April 1, 1998, and section 22 applies with the necessary modifications to such a payment.

37(15) If the commuted value of a benefit of a judge is to be divided on marriage breakdown 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 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 such an election is made or deemed to be made independently of the decree, order, judgment or written agreement.

37(16) Notwithstanding subsection (15), the revaluation of the judge’s portion of an annual pension on marriage breakdown 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.

 

Return of overpayment of contributions

38 If, between April 1, 1998 and the date on which this Act receives Royal Assent, inclusive, a judge would have been entitled under subsection 5(1) or (2), if that subsection had been in effect on April 1, 1998, to cease making contributions in relation to the Plan under this Act, a sum of money equal to all contributions that the judge may have made under subsection 15(7) of the Provincial Court Act to the fund referred to in that subsection between the date when that entitlement to cease contributing would have occurred, and the date on which this Act receives Royal Assent, shall be returned to the judge, together with interest on the amount so contributed by the judge from time to time, and subsections 7(2) and (3) apply with the necessary modifications to the return of contributions.

PART X

CONSEQUENTIAL AMENDMENTS

Consequential amendments

39 The Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is amended

(a) in subsection 1(1) by repealing the definition "benefit" and substituting the following:

 

"benefit" means an annuity under section 15 and includes a return of contributions under section 17.11 and a payment out of the Consolidated Fund under subsection 21(4) of the Provincial Court Judges’ Pension Act;

 

(b) in subsection 7(5) by striking out "15, 16 and 17" and substituting "15 and 16";

 

(c) in section 15

(i) by adding after subsection (1) the following:

15(1.01) Notwithstanding subsection (1), a judge who is not entitled to be paid an unreduced annuity under subsection (1) only because he or she has not held office for at least twenty-five years, or has not reached the age of sixty-five years, may elect to retire and be paid a reduced annuity commencing on the day of the judge’s retirement, in the amount that would have been payable to the judge under subsection (1) if an unreduced annuity had begun to be paid to the judge when he or she was entitled to receive it under that subsection, reduced by five-twelfths of one per cent for each calendar month from the calendar month following the calendar month in which the judge actually began retirement, to and including the calendar month before the calendar month in which the judge would have been entitled to begin being paid the unreduced annuity under subsection (1).

 

15(1.02) Election of an entitlement to a deferred annuity under paragraph (1)(b) or (b.1) or election of payment of a reduced annuity under subsection (1.01) is a substitute for any other election or payment under this section and is irrevocable and a judge who makes such an election is not entitled to be paid any other annuity under this Act.

 

(ii) in subsection (4) in the portion following paragraph (d) by striking out "(1.1)" and substituting "(1.01)";

(iii) by repealing subsection (7);

(iv) by repealing subsection (8) and substituting the following:

15(8) Notwithstanding subsections (1) and (1.01), annuities payable under either of those subsections are to be integrated with the Canada Pension Plan in accordance with the regulations.

 

(d) by repealing section 17;

(e) by repealing section 17.1;

(f) in section 17.3

(i) by repealing paragraph (3)(c) and substituting the following:

(c) in relation to the pension trust fund referred to in section 17.1 as it existed before the date on which the Provincial Court Judges’ Pension Act received Royal Assent, or to the Fund referred to in that Act,

(ii) by repealing subsection (8) and substituting the following:

17.3(8) A division of benefits under this section is limited by any restrictions under this Act in relation to the payment of money out of the pension trust fund referred to in section 17.1 as it existed before the date on which the Provincial Court Judges’ Pension Act received Royal Assent, or out of the Fund referred to in that Act.

 

(g) by repealing paragraph 23(1)(i).

PART XI

COMMENCEMENT

Commencement

40 Sections 1 and 2, subsections 3(2) and (3) and 5(4), sections 8 to 10, 13 to 21, 23 to 25, 27, 28 and 32 and paragraphs 36(1)(a), (d) and (k) to (n) of this Act shall be deemed to have come into force on April 1, 1998.