Regulations Amending Certain Regulations Made Under the Judges Act: SOR/2019-103

Canada Gazette, Part II, Volume 153, Number 9

Registration
SOR/2019-103 April 15, 2019

JUDGES ACT

P.C. 2019-335 April 12, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsections 44.01(5)^{footnote a}, 44.2(4)^{footnote b} and 47(2) and sections 49^{footnote c} and 52.22^{footnote d} of the Judges Act^{footnote e}, makes the annexed Regulations Amending Certain Regulations Made Under the Judges Act.

Regulations Amending Certain Regulations Made Under the Judges Act

Annuities Payable to Survivors and Children of Judges Regulations

1 (1) Subsection 3(1) of the Annuities Payable to Survivors and Children of Judges Regulations^{footnote 1} is replaced by the following:

3 (1) On the payment of an annuity under the Act to the survivor or child of a judge or a retired judge, application in writing may be made by or on behalf of the survivor or child to the Minister for payment out of the Consolidated Revenue Fund of the whole or any part of the portion of any estate, legacy, succession or inheritance duties or taxes (in this section referred to as “death duties”) payable by the survivor or child that is attributable to the annuity.

(3) Paragraph 3(2)(a) of the Regulations is replaced by the following:

(a) the value of the annuity paid to the survivor or child

Enhanced Survivor Annuity Regulations

2 Sections 7 and 8 of the Enhanced Survivor Annuity Regulations^{footnote 2} are replaced by the following:

7 If a judge makes an election, the reduction to the judge’s annuity for the purposes of subsection 44.01(2) of the Act is equal to the monthly instalments of the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, less the monthly instalments of the judge’s annuity described in subparagraph 9(b)(i).

8 If a judge who opted to receive a deferred annuity has made an election and subsequently opts to receive an immediate annuity, the reduction determined under section 7 shall be revised to take into account the new period during which the monthly instalments are to be reduced.

3 (1) Paragraph 9(a) of the Regulations is replaced by the following:

(a) the annuity that was granted or paid to the judge and to which the survivor was entitled under Part I of the Act immediately before the election, the death benefit payable under subsection 51(3) of the Act and the benefits payable under the Supplementary Retirement Benefits Act,

(2) Subparagraph 9(b)(ii) of the Regulations is replaced by the following:

(ii) an annuity payable to the judge with monthly instalments equal to the monthly instalments that comprise the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, beginning on the day on which the marriage or cohabitation in a conjugal relationship ceases,

Optional Survivor Annuity Regulations

4 Sections 7 and 8 of the Optional Survivor Annuity Regulations^{footnote 3} are replaced by the following:

7 If a judge makes an election, the reduction to the judge’s annuity for the purposes of subsection 44.2(2) of the Act is equal to the monthly instalments of the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, less the monthly instalments of the judge’s annuity described in subparagraph 9(b)(i).

5 (1) Paragraph 9(a) of the Regulations is replaced by the following:

(a) the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, the death benefit payable under subsection 51(3) of the Act and the benefits payable under the Supplementary Retirement Benefits Act,

(2) Subparagraph 9(b)(ii) of the Regulations is replaced by the following:

(ii) an annuity payable to the judge with monthly instalments equal to the monthly instalments that comprise the annuity that was granted or paid to the judge under Part I of the Act immediately before the election, beginning on the day on which the marriage or cohabitation in a conjugal relationship ceases,

Division of Judges’ Annuity Benefits Regulations

6 (1) Paragraph 14(1)(b) of the Division of Judges’ Annuity Benefits Regulations^{footnote 4} is replaced by the following:

(b) the date on which the judge
- (i) would be granted or paid an annuity under subsection 42(1) or (1.1) of the Act if he or she ceased to hold office,
- (ii) would have been granted or paid an annuity under paragraph 42(1)(a), (b) or (c) or 42(1.1)(a) of the Act if he or she had ceased to hold office and had not been granted an earlier annuity under paragraph 42(1.1)(b) of the Act, or
- (iii) was granted or paid an annuity under subsection 42(1) or (1.1) or section 43.1 of the Act;

(2) Paragraphs 14(1)(d) and (e) of the Regulations are replaced by the following:

(d) if, on the date on which the information is prepared, the judge would not be granted or paid an annuity if he or she ceased to hold office or if, on valuation day, as determined in accordance with section 19, the judge would not have been granted or paid an annuity if he or she had ceased to hold office, the amount of contributions made by him or her under section 50 of the Act during the period subject to division and the interest on the contributions calculated under subsection 51(4) of the Act;
(e) an estimate of the amount of the annuity that the judge would be granted or paid if he or she ceased to hold office on the last day of the period subject to division or that he or she would have been granted or paid if he or she had ceased to hold office on valuation day, as determined in accordance with section 19; and

7 (1) Subparagraph 22(a)(i) of the Regulations is replaced by the following:

(i) the amount of the annuity that would be granted or paid to him or her on retirement, if that annuity were determined on the basis of the dates on which he or she might cease to hold office and the salary annexed to the office held by him or her on the last day of the period subject to division, and

(2) Subparagraph 22(b)(i) of the Regulations is replaced by the following:

(i) the amount of the annuity that would have been granted or paid to him or her on the day on which he or she ceased to hold office, if that annuity had been determined on the basis of the salary annexed to the office held by him or her on the last day of the period subject to division, and

(3) The portion of paragraph 22(c) of the Regulations before subparagraph (ii) is replaced by the following:

(c) if the period subject to division ended as a result of the judge ceasing to hold office for a reason other than the infirmity referred to in paragraph 42(1.1)(b) of the Act, the total of
- (i) the amount of the annuity that was granted or paid to him or her on the day on which he or she ceased to hold office, and

(4) The portion of paragraph 22(d) of the Regulations before subparagraph (i) is replaced by the following:

(d) if the period subject to division ended as a result of the judge ceasing to hold office by reason of the infirmity referred to in paragraph 42(1.1)(b) of the Act, the total of

(5) The portion of paragraph 22(e) of the Regulations before subparagraph (i) is replaced by the following:

(e) if the judge ceased to hold office after the last day of the period subject to division, but before valuation day by reason of the infirmity referred to in paragraph 42(1.1)(b) of the Act, the total of

8 Paragraph 23(g) of the Regulations is replaced by the following:

(g) if the judge ceased to hold office by reason of the infirmity referred to in paragraph 42(1.1)(b) of the Act, the determination must take into account only the annuity benefits payable to him or her beginning on the later of valuation day and the day that would have been his or her expected date of retirement had the infirmity not occurred.

9 (1) The description of A in section 24 of the Regulations is replaced by the following:

A is the amount of the annuity that would have been granted or paid to the judge if he or she had ceased to hold office on the last day of the period subject to division and had been eligible to be granted or paid an annuity on that day under section 42 or 43.1 of the Act;

(2) Paragraph (b) of the description of C in section 24 of the Regulations is replaced by the following:

(b) if he or she ceased to hold office by reason of the infirmity referred to in paragraph 42(1.1)(b) of the Act, on the earlier of the day after the last day of the period during which the interested parties cohabited and the day that would have been his or her expected date of retirement had the infirmity not occurred.

10 (1) Subparagraph 25(2)(b)(ii) of the Regulations is replaced by the following:

(ii) if the judge has opted to receive a deferred annuity, the day on which he or she reaches 60 years of age.

(2) Subsection 25(3) of the Regulations is replaced by the following:

When adjustment made — infirmity

(3) If, however, the period subject to division ended as a result of the judge ceasing to hold office by reason of the infirmity referred to in paragraph 42(1.1)(b) of the Act or if, after the last day of that period and before valuation day, the judge ceased to hold office by reason of that infirmity, the adjustment is to be made as soon as practicable after the day that would have been his or her expected date of retirement, determined in accordance with paragraph 21(d), had the infirmity not occurred.

11 The portion of section 26 of the Regulations before paragraph (a) is replaced by the following:

Return of contributions — deductions

26 If, on the day on which the judge ceases to hold office, he or she is not granted or paid an annuity, there must be deducted from the amount to be paid to him or her under subsection 51(1) of the Act

12 (1) The portion of subsection 27(1) of the Regulations before paragraph (a) is replaced by the following:

Judge receives annuity — share of contributions

27 (1) If, on the day on which the judge ceases to hold office, he or she is granted or paid an annuity and if the share of the annuity benefits that was accorded to the spouse, former spouse or former common-law partner under subsection 52.15(1) of the Act consists of a share of the contributions paid by the judge during the period subject to division, there must be deducted from the amount of the annuity paid to the judge when the adjustment takes effect

(2) Subparagraph (i) of the description of B in paragraph 27(1)(a) of the Regulations is replaced by the following:

(i) the amount of the annuity that would have been granted or paid to the judge on the last day of the period subject to division if the judge had been eligible to be granted or paid an annuity on that day under section 42 or 43.1 of the Act, together with the amount of the supplementary retirement benefits that would have been added to that annuity under the Supplementary Retirement Benefits Act from the day after that day until the day on which the adjustment takes effect if that Act had applied to the judge during that time, and

(3) The description of B in paragraph 27(1)(b) of the Regulations is replaced by the following:

B is the quotient, not exceeding one, obtained by dividing the lump sum by the amount that the spouse, former spouse or former common-law partner would have received if the share of the annuity benefits that was accorded to him or her had consisted of a share of the annuity that was granted or paid to the judge and if the amount representing 50% set out in paragraph 52.14(1)(a) of the Act had applied.

13 (1) The portion of subsection 28(1) of the Regulations before paragraph (a) is replaced by the following:

Infirmity — share of contributions

28 (1) If the judge ceased to hold office by reason of the infirmity referred to in paragraph 42(1.1)(b) of the Act and if the share of the annuity benefits that was accorded to the spouse, former spouse or former common-law partner under subsection 52.15(1) of the Act consists of a share of the contributions paid by the judge, there must be deducted from the amount of the annuity paid to the judge when the adjustment takes effect

(2) Subparagraph (i) of the description of B in paragraph 28(1)(a) of the Regulations is replaced by the following:

(i) the amount of the annuity that would have been granted or paid to the judge on the last day of the period subject to division if the judge had been eligible to be granted or paid an annuity on that day under section 42 or 43.1 of the Act, together with the amount of the supplementary retirement benefits that would have been added to that annuity under the Supplementary Retirement Benefits Act from the day after that day until the day on which the adjustment takes effect if that Act had applied to the judge during that time, and

(3) The description of F in paragraph 28(1)(a) of the Regulations is replaced by the following:

F is the amount that the spouse, former spouse or former common-law partner would have received if the share of the annuity benefits that was accorded to him or her had consisted of a share of the annuity that was granted or paid to the judge; and

(4) The description of B in paragraph 28(1)(b) of the Regulations is replaced by the following:

B is the quotient, not exceeding one, obtained by dividing the lump sum by the amount that the spouse, former spouse or former common-law partner would have received if the share of the annuity benefits that was accorded to him or her had consisted of a share of the annuity that was granted or paid to the judge and if the amount representing 50% set out in paragraph 52.14(1)(a) of the Act had applied.

(5) Subparagraph (i) of the description of A in paragraph 28(2)(a) of the Regulations is replaced by the following:

(i) the amount of the annuity that would have been granted or paid to the judge on the last day of the period subject to division if the judge had been eligible to be granted or paid an annuity on that day under section 42 or 43.1 of the Act, together with the amount of the supplementary retirement benefits that would have been added to that annuity under the Supplementary Retirement Benefits Act from the day after that day until the day on which the adjustment takes effect if that Act had applied to the judge during that time, and

Coming into Force

14 These Regulations come into force on the day on which sections 237, 238 and 240 to 251 of the Budget Implementation Act, 2017, No. 2, chapter 33 of the Statutes of Canada, 2017, come into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

These regulatory amendments will ensure consistency between the terminology used in the Judges Act, as amended by the Budget Implementation Act, 2017, No. 2 (BIA 2 2017), and the regulations that are made under it.

Background

Prior to the amendments introduced in BIA 2 2017, an order in council was required to grant all annuities under the Judges Act (i.e. to judges, as well as their survivors and children). This created inefficiencies and delays in the payment of annuities to judges on retirement, or to their survivors or children on the death of a judge or former judge. Even though most of the annuities are non-discretionary, they still required that the Governor in Council act in every instance by issuing an order in council; this “granting” of annuities is a historical practice that is no longer required in the modern era. Delays can be particularly acute during periods when Cabinet is not meeting regularly, such as during or immediately after a general election.

Recent amendments included in the BIA 2 2017 changed the mechanism for payment of most annuities under the Act by eliminating the need for an order in council to authorize payment, with consequent changes in terminology (i.e. from “granted” to “paid”). With these amendments, all future non-discretionary annuities to judges, their survivors and children will be authorized by operation of statute.

Objectives

To ensure consistency in the terminology used in the Judges Act and the regulations that are made under it, which will allow for the implementation of the change to the mechanism for the payment of most annuities under the Act.

Description

The following regulations require amendments to ensure consistency in the terminology between the Judges Act and the regulations:

Annuities Payable to Survivors and Children of Judges Regulations, C.R.C., c. 985;
Division of Judges’ Annuity Benefits Regulations, SOR/2008-252;
Enhanced Survivor Annuity Regulations, SOR/2001-282; and
Optional Survivor Annuity Regulations, SOR/2001-283.

This generally involves changing the word “granted” (“accordé”) to “paid” (“versé”), or simply adding a reference to “paid” annuities in appropriate circumstances.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these Regulations, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to these Regulations, as there are no costs on small business.

Rationale

These regulatory amendments bring the regulatory terminology in line with amendments to the Judges Act included in the BIA 2 2017, and are cost neutral. With respect to the statutory amendments, there will be significant administrative savings in the process required to authorize payment of each annuity. The Commissioner for Federal Judicial Affairs, who is responsible for administering payments under the Judges Act, will no longer be required to create a package for Cabinet consideration in every instance; rather, once the statutory criteria are met, the Commissioner can begin payments. This will eliminate a significant administrative burden.

Importantly, the statutory amendments will also benefit judges and their survivors (spouses) and children. Eliminating the need for an order in council will decrease the chances for delays in payments to judges on retirement, as well as to their survivors and/or children at the time of the death of a judge or former judge. This will allow more efficient processing of payments to which these individuals are entitled, and address concerns that would be particularly acute for the survivors and children of judges and former judges.

Contact

Anna Dekker
Judicial Affairs Section
Public Law and Legislative Services Sector
Department of Justice Canada
Email: anna.dekker@justice.gc.ca
Telephone: 613‑952‑0516