Pensions and marriage breakdown – a guide for members and their spouses

 
 

Purpose

This Guide provides members and their spouses an overview of valuing and dividing a member’s pension upon marriage breakdown. It is also a helpful resource for plan administrators and other pensions professionals. Sections of this Guide may also apply to common law spouses. (see: Common Law Spouses).

For questions not covered in this guide, members and spouses should contact their plan administrator. They may also obtain professional advice. FSRA encourages plan administrators and other professionals with technical questions to review FSRA's Proposed Guidance on Administration of Pension Benefits Upon Marriage Breakdown.

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How do I deal with my pension after separation?

When married couples separate, spouses usually keep the property they own. But they share in any increase in the value of their property. This increase is net of debts. This increase during the marriage is “Net Family Property.”

The value of a pension is an asset included in the calculation of Net Family Property. Each spouse has their own Net Family Property amount. The law entitles the spouse with the smaller Net Family Property to one half of the difference between their two numbers. The payment from one spouse to the other is an “equalization payment”. Pension assets can, but do not have to, be used to make this payment.

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How do I deal with my pension after separation?

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Explanation: Spouse A has a larger Net Family Property than Spouse B. To equalize, calculate the difference between the Net Family Property of Spouse A ($200,000) and Spouse B ($80,000). This equals $120,000. Spouse A must then make an equalization payment of one half of that difference ($60,000) to satisfy their obligation. Spouse A can settle the equalization payment using the pension, other assets, or a combination thereof. The above tables are illustrative only, and do not take into account tax considerations.

 

What if I am in a common-law relationship?

The Ontario Family Law Act does not require common-law spouses to equalize their Net Family Property. They may choose to do so under a domestic contract. A court order or family arbitration award may also require a payment. Common law spouses who are considering dividing their pension assets should seek legal advice.

Common-law status makes a difference as to whether you must equalize Net Family Property. It does not make a difference for many other issues including spousal and child support and pension survivor benefits.

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What are the steps in the process?

Pension legislation outlines how to value pensions as assets for inclusion in the Net Family Property calculation. It also clarifies how to divide any part of a pension used as an equalization payment. The process for obtaining the pension’s value and using it as part of an equalization payment is below.

Steps 1 to 3[1] show how to value a pension. Complete steps 4 to 6 if you and your spouse decide to use pension assets to equalize property.

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What are the steps in the process?

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Family Law Value: The total value of the pension earned during the relationship. Spouses can, but do not have to, use up to 50% of this value to equalize Net Family Property. They are not required to.

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What rules apply to me?

The Ontario family property rules explained in this Guide apply to married spouses. See How Do I Deal with My Pension After Separation? This Guide applies to common-law spouses when a court order or family arbitration award requires division of pension assets. It also applies if common-law spouses chose to divide pension assets. The process for valuation and division in this Guide applies if:

  • The Ontario Family Law Act applies to your marriage breakdown;
  • The last place you and your spouse resided together before separation was in Ontario; and
  • The Ontario Pension Benefits Act regulates your pension benefit.

Your plan administrator and / or a lawyer can assist in determining if any of these criteria apply to you. This Guide does NOT apply if you are an Ontario resident participating in the following plans:

  • Federally regulated pension plans (e.g. plans in federally regulated sectors such as aviation, banking, telecommunications or interprovincial transportation when performing work under federal regulation). Contact your plan administrator for assistance. You may also refer to the Office of the Superintendent of Financial Institutions’ newsletters. Look under Marriage or Common-Law Partnership Breakdown
  • Federal government pension plans (e.g. Canadian Forces pension). Contact the Government of Canada Pension Centre for assistance.
  • Government sponsored retirement benefits (e.g. Canada Pension Plan (CPP)). Contact Service Canada for information about credit-splitting for CPP.
  • Any other pension or retirement savings plans not governed by the Ontario Pension Benefits Act (e.g. Supplemental Employee Retirement Plans (SERPs), Retirement Compensation Arrangements (RCAs), Registered Retirement Savings Plans (RRSPs), foreign pension plans, etc.).Contact the provider of these plans for assistance.

What if I have an agreement signed before January 1, 2012?

On January 1, 2012, the rules dealing with pensions upon marriage breakdown changed. This Guide does not apply where:

  • the Settlement Instrument was dated before January 1, 2012;
  • it required one spouse to make an equalization payment under section 5 of the Family Law Act.

Instead, the pre-2012 pension valuation and division rules apply. Settlement Instruments include any of the following:

  • court order;
  • family arbitration award; or
  • domestic contract (e.g. separation agreement).

If the pre-2012 pension division process applies, the plan administrator cannot make a payment until the earliest of:

  • the plan member terminates employment (or membership in the case of multi-employer pension plans);
  • reaches the normal retirement date under the pension plan;
  • retires; or
  • dies.

To make a payment from the plan, provide the plan administrator with a certified copy of a Settlement Instrument. Contact your plan administrator or consult a lawyer with any questions about the pre-2012 pension division process.

Certified Copy: A certified copy is a copy of the original document certified as being a true copy. People who provide certification include lawyers and notaries. Contact the plan administrator to find out if it will accept certified copies from other people (e.g. Human Resource personnel).

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Where do I start?

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Where do I start?

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What if the money is held in a locked-in account?

This Guide does not apply if the member transfers the assets to a locked-in account before their separation date.

In these cases, the financial institution will be responsible for dealing with any division of the assets. The financial institution cannot pay more than 50% of assets in the locked-in account as of the separation date.

FSRA does not provide any forms for spouses of locked-in account owners to access money held those accounts. Check with the financial institution administering the locked-in account. They may have their own forms for this purpose.

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Locked-in Account: Locked-in accounts are accounts designed to hold “locked-in” pension assets (e.g. a LIRA or LIF). The “Locked-in” element refers to restrictions on withdrawals. These restrictions help ensure the account holder uses the assets in retirement (and not before)

What options are available to the spouse if the assets are in a LIF or a LIRA?

The member can use part of the LIF or LIRA to pay equalization. The spouse may transfer this amount to their own LIRA or a LIF. The spouse may also purchase a life annuity from an insurance company. In certain cases, a spouse may transfer their share to another pension plan. The share may be transferred to another plan if it is registered under the pension legislation of a Canadian jurisdiction. It may also be transferred to a plan provided by a government in Canada. Additionally, the administrator of the other plan must agree to accept the transfer. 

When can a spouse start receiving payments of the transferred assets?

The spouse can start receiving payment at age 55. The money may be held in a LIRA. In this case, the spouse needs to purchase a LIF or life annuity to start receiving payments. Note that the spouse cannot receive money directly from the LIRA.

What if the assets were still in the pension plan on the family law valuation date?

A plan member might transfer their entitlement out of the pension plan to a locked-in account. Sometimes this occurs after the Family Law Valuation Date but before requesting a valuation. In these cases, the assets were held by the pension plan on the Family Law Valuation Date.

Where this happens, the valuation and division rules in this Guide do apply. You must get a valuation of the pension. The maximum share of the assets transferred to the spouse is 50% of the Family Law Value. The plan terms in effect on the Family Law Valuation Date determine The Family Law Value.

The plan member (locked-in account owner) may ask their former pension plan administrator if they can provide the valuation. If their former administrator does not provide this service, other professionals may have to perform the valuation. For instance, an independent actuary could perform the valuation for defined benefit pension assets.

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Roles and responsibilities: who does what?  

Plan administrator

The plan administrator is generally responsible for the following:

  • Valuing the pension benefit;
  • Making pension payments or transferring lump-sum amounts; and
  • Adjusting the remaining benefits when the process is complete.

The administrator, however, is not responsible for providing legal advice concerning negotiation matters.

How can I contact the plan administrator?

You can find the plan administrator’s contact information at FSRA Pension Plan Information Access. To use this site, you need to know one of the following:

  • the name of the employer, union or professional association sponsoring the pension plan;
  • the plan registration number;
  • or plan name.

The name or registration number is usually in pension plan brochures / booklets or on the plan’s website. A member’s pension statements would also have this information.

Members and spouses

Under the Family Law Act, members are responsible for valuing their property. However, both the member and the spouse can apply for a valuation. Spouses are responsible for completing any application to divide the pension.

FSRA’s forms are available on the FSRA Website. You may want to ask the plan administrator if it has pre-populated FSRA’s family law forms with plan information.

FSRA encourages members and spouses to review this Guide in its entirety. This will help them understand the basic process of valuation and division. They are responsible for ensuring that the information provided to the plan administrator is accurate and complete. They are also responsible for responding to any valid requests for documentation or other information requested by their administrator. Responding promptly helps to ensure a smooth and orderly process.

The rules surrounding valuation and division of pensions are complex. Members, and in many cases spouses, may need the assistance of lawyer of other professionals. This Guide provides a basic overview of the most common valuation and division scenarios. However, in many cases the member and spouse’s situation may be more complicated. For example, it may not be clear which province’s rules apply. Or the spouses may have a Settlement Instrument dated pre-2012. In these types of cases, particularly, FSRA strongly encourages spouses to seek legal advice from a family law lawyer.

Financial Services Regulatory Authority of Ontario (FSRA)

FSRA is responsible for the administration and enforcement of the Pension Benefits Act (PBA) and its regulations. FSRA does not administer the Family Law Act or provide legal advice.  FSRA may provide interpretations to assist with understanding the implications of these acts.

1. Can FSRA review my complaint relating to family law matters?

The nature of an inquiry or complaint determines whether to contact the plan administrator or FSRA for assistance. The plan administrator maintains all data on a plan member’s entitlements under the pension plan. FSRA does not have personal data about individual members. Plan administrators should answer any questions or concerns about entitlements, or provisions of the plan. You may contact FSRA for assistance at pensioninquiries@fsrao.ca if:

  • You are unable to resolve an issue with the plan administrator, or
  • You have concerns about contacting the administrator directly.

What if I disagree with FSRA’s conclusion of my complaint?

You may request an Order which you can then appeal. The Financial Services Tribunal (FST) would hear this appeal. You may appeal the FST’s decision to the Ontario Divisional Court.

2. May I go directly to the Court for my family law issue instead of going through FSRA?

It depends on the issue. Matters concerning pension legislation interpretation should go through FSRA. If you are unsure, contact your lawyer or FSRA for assistance.   FSRA requests to be informed of any matter before a court involving an interpretation of the Pension Benefits Act or its Regulations. This allows FSRA to decide whether to involve itself in the proceeding.

How can I reach FSRA?

You may contact FSRA by phone or e-mail. 
By phone: (416) 226-7776 (toll-free: 1-800-668-0128, ext. 7776)
By email: pensioninquiries@fsrao.ca

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Can pensions be garnished for support? 

Pension payments can be garnished or seized for child support or spousal support if:

  • the pension plan is paying a pension to the member;
  • the amount of support does not exceed 50% of the pension payable; and
  • the order is enforceable in Ontario.

These types of orders are different from equalization payments. Therefore, together a support payment and an equalization payment may total more than 50% of the Family Law Value. You may want to contact your lawyer and the Family Responsibility Office (FRO) for matters concerning support payments. 

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Additional resources

FSRA’s Website:

Other Websites:

Appendix A: summary checklist for plan members

This Appendix is not legal advice.

1. Valuing a pension

  • You need to value your pension because it is property. There are different rules for married and common law spouses.
  • There is one standard form to request the value of any type of pension registered in Ontario. That form is Application for Family Law Value
  • Either you or your married spouse can ask the administrator of the pension plan to value the pension. Your common-law spouse cannot ask the administrator for this information.

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Application checklist:

  • Do you have your spouse’s contact information? The administrator must provide a copy of the valuation to you and your spouse at the same time.
  • Do you have a document that verifies when your relationship began?
    • For example, a marriage certificate or court order?
    • If not, you and your spouse can sign a Joint Declaration of Period of Spousal Relationship.
  • Do you have a document that states your separation date?
    • Separation agreement, family arbitration award or court order?
    • If not, you and your spouse can sign the Joint Declaration of Period of Spousal Relationship.
    • If you and your spouse cannot agree on the separation date, you can request two family law values. This form is in Application for Family Law Value.
  • Proof of your date of birth.
  • Did you include the fee? Ask the plan administrator if they charge a fee.
  • Send the completed Application for Family Law Value to the administrator of the pension plan, not to FSRA.
  • If you have more than one pension, complete a separate form for each plan.

Financial statement:

  • Include the value (before tax) of the pension on your Financial Statement. This should be in Part 7(c): Bank Accounts, Savings, Securities and Pensions.
  •  List your future tax liability for the pension as a debt in Part 8 of your Financial Statement.  You may need an actuary to calculate your future tax rate.

2. Dividing a pension

  • If you owe your spouse an equalization payment, you can agree to divide your pension to satisfy that debt. This could be all or a part of that debt.
  • You will need to have your pension valued before you can divide it.
  • There are two steps for pension division:
    • A separation agreement, family arbitration award or court order authorizes the pension payment; and
    • Your spouse must complete an application form to divide the pension.
  • There are different payment options and different forms to complete. Payment options and forms depend on whether you were receiving pension payments when you separated.
    • If you separated before retirement, the plan administrator can pay a lump-sum to your spouse’s locked-in account.
    • If you separated after retirement, the plan administrator can pay some of your monthly pension payments directly to your spouse, after deducting tax.

a. Separation before retirement

What to consider when drafting the Settlement Instrument:

  • Include the separation date. Make sure that it is the same date you used on the Application for Family Law Value.
  • Name the pension plan. Specify that the payment is to be direct from this plan to the spouse.
  • State the amount to the plan will pay to the spouse. Express this as a lump sum dollar amount or as a percentage of the value. It cannot be both.
  • Maximum: Make sure that this amount is not more than 50% of the Family Law Value. The pension valuation form states this limit.
  • Interest. Consider whether you will be paying interest on the lump-sum. The administrator calculates interest on the lump sum from your separation date to the payment date. Be careful to consider the rules on when interest applies. Different rules apply when the payment is as a dollar amount or percentage
  • Tax: Note that the lump-sum payment will be a gross, before tax, amount.
  • Note: If you retire before the plan transfers the lump-sum to your spouse, contact your administrator. Your retirement may decrease the amount available to pay to your spouse.

Lump-sum transfer application checklist:

  • Your spouse must complete the Application to Transfer the Family Law Value.
  • The application should include a copy of the document authorizing the payment. This could be a:
    • separation agreement;
    • family arbitration award; or
    • court order.
  • Locking In: Keep in mind that the lump-sum will not be cash. The pension valuation form lists options available to the spouse.
  • If the plan will transfer the payment to a financial institution, your spouse must set up a receiving account. These accounts include a locked-in retirement account (LIRA) or a life income fund (LIF).
  • Send the completed application to the plan administrator.

b. Separation after retirement

What to Consider When Drafting the Settlement Instrument:

  • Include your separation date. Make sure that it is the same date you used on valuation application, FSRA Family Law Form FL-1.
  • Include the name of the pension plan.
  • State the amount of each pension payment you will pay to your spouse. You may state the amount as either as a specified dollar or as a percentage of each pension payment. For example, $500 per month or 25% of each pension instalment. Make sure that this amount is not more than 50%. Your pension valuation form includes this limit.
  • If the payment is a dollar amount, consider whether to adjust for indexation, if applicable.
  • You may need an actuary to calculate the percentage. For example, assume your equalization debt is $75,000 and your monthly pension payment is $2,500. An actuary would be able to calculate the percentage of each pension payment that should add up to $75,000.
  • Payment Start and End Dates. The plan administrator will calculate payments as though you started dividing your pension the month after separation. If time has passed between your separation date and the first pension division payment, there may be arrears. Payments will cease when the plan member dies, regardless of whether you have fully paid the equalization debt. If the spouse dies first, it is not clear whether the payments continue to the spouse’s estate.
  • Tax: Note the plan will deduct tax from the spouse’s portion of the pension payments.

Pension division application checklist:

  • Your spouse must complete Application to Divide a Retired Member’s Pension.
  • The pension division application should include a copy the document that authorized the payment. This could be a:
  • separation agreement;
  • family arbitration award; or
  • court order.
  • Send this form to the plan administrator.
  • Contact the administrator for any other practical information on how to effect the division (e.g. use of direct deposit).

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[1] In a common-law relationship, only the member may apply for a Statement of Family Law Value.