Defence Services Pension Continuation Regulations

Regulations Made Pursuant to the Defence Services Pension Continuation Act These Regulations may be cited as the Defence Services Pension Continuation Regulations. In these Regulations, Act means the Defence Services Pension Continuation Act; (Loi) a(f) Ultimate Table means the table so entitled appearing in the Mortality of Annuitants 1900-1920 published on behalf of the Institute of Actuaries and The Faculty of Actuaries in Scotland, 1924; (a(f) Ultimate Table) annuity means an annuity immediate or deferred, or annual allowance, computed in accordance with the Public Service Superannuation Act; (rente viagère) augmenting service means any period, subsequent to the grant of a pension, of continuous full-time paid service of one year or more in the forces, in the naval, army or air forces of Canada or the Canadian Forces, other than the forces, if during such period the officer or man receives the pay of his rank as though he were in the forces, and in the public service, in respect of which he is not entitled to an annuity; (service ouvrant droit à majoration) forces means the regular force of the Canadian Forces and includes the forces known before February 1, 1968 as the regular forces of the Canadian Forces, and the forces known before February 1, 1968 as the Royal Canadian Navy, the Canadian Army Active Force, the Permanent Active Militia, the Permanent Militia Corps, the permanent staff of the Militia, the Royal Canadian Air Force (Regular) and the Permanent Active Air Force; (forces) former Act means the Defence Services Pension Act; (ancienne loi) Minister means the Minister of National Defence; (ministre) Parts I to IV means the respective parts of the Act; (parties I à IV) pension means a pension granted, pursuant to any of Parts I to III of the Act, to a person in respect of his service; (pension) pensioner means a person to whom a pension has been granted; (pensionné) public service means all branches or portions of the public service of Canada to which the Public Service Superannuation Act is applicable. (fonction publique) For the purpose of computing a pension in respect of an officer, other than a pensioner, service, in addition to any periods specified in Parts I to III of the Act, includes any continuous period of full-time service of six months or more in the naval, army or air forces of Her Majesty raised in Canada or the Canadian Forces, other than the forces, if during such period he received the pay of his rank as though he were in the forces as defined in such Part, and he is otherwise eligible for a pension under any of Parts I to III, but that service may not be counted as service under any other provision of any such Parts, except to the extent prescribed by paragraph 7(e), paragraph (b) of the definition service in section 37(1) or paragraph (c) of the definition service in section 41 of the Act for the purpose of determining eligibility for pension. Where a person, prior to the war that commenced on September 10, 1939, served as an officer in the Royal Canadian Air Force other than the Permanent Active Air Force, for a continuous period of full-time service for six months or more, but did not receive the pay of his rank as though he were in the forces, and subsequently served on active service during that war and during such period of full-time service received remuneration by way of pay, or pay and allowances, according to the service regulations applicable to his appointment, such continuous period of full-time service shall be included for the purpose of making contributions and of computing a pension to which he may be entitled under Parts I to III of the Act. For the purpose of computing a pension in respect of an officer or militiaman, service, in addition to any periods specified in Parts I to III of the Act, includes any service as a member of the regular force of the Canadian Forces. A pensioner serving on a full-time paid basis in the forces or in the naval, army or air forces of Canada or the Canadian Forces, other than the forces, if receiving the pay of his rank as though he were in the forces, may elect, within one year of the commencement of that full-time paid service, to count for the purpose of computing his pension the whole augmenting service performed subsequent to the said commencement and during that service and upon the making of that election entitlement to the whole or that part of the pension to which he is otherwise entitled during that service, or the gratuity to which he would otherwise become entitled in respect of that service, shall terminate, and he shall repay the whole or that part of the pension he may have received during that service, in the manner hereinafter provided; and to count for the purpose of computing his pension the whole or any part, but not less than one year, of any period of augmenting service he may have performed subsequent to the grant of his pension but prior to the commencement of his current full-time paid service provided he makes an election pursuant to paragraph (a), and repays the whole or that part of the pension he may have received during that augmenting service or the gratuity he may have received in respect of that augmenting service, in the manner hereinafter provided. Every election made by a pensioner under this section shall, in the form prescribed by the Minister, be evidenced in writing and witnessed, and the original thereof shall be forwarded to a person designated by the Minister for the purpose, by registered mail or in such other manner as the Minister directs, within one month of making the election. A pensioner, who has elected to count augmenting service pursuant to paragraph 5(1)(a) and receives pension payments during that augmenting service, shall repay the payments in one sum or by reservation from pay and allowances or otherwise, without interest, in equal instalments over a period similar to that during which the payments were made to him, the instalments to commence on the expiration of the month next following the date of his election, except that no repayment is required for a period when the pensioner's pay and allowances are reduced by the amount of the gross pension paid, pursuant to relevant pay regulations. A pensioner, electing to count the whole of that augmenting service pursuant to paragraph 5(1)(b) and in respect of which he has been paid a gratuity, or during that service has received pension payments, shall repay an amount equal to the gratuity or pension payments received by him during that service, together with simple interest at the rate of four per cent per annum from the date of payment of that gratuity or pension payments to the date of his election under that section, and where the pensioner has elected to count part of that augmenting service, the repayment required in respect of that part shall be the proportion of the said amount that the part is of the whole of his augmenting service, except that no repayment is required for a period when the pensioner's pay and allowances are reduced by the amount of the gross pension paid, pursuant to relevant pay regulations. The repayment required by subsection (2) may be made in one sum or in instalments equivalent in value to the total amount of the arrears, payable by reservation from pay and allowances or otherwise, for life, or for a period of years or for life whichever is shorter, to commence on the expiration of the month next following the date of the election, the said instalments to be computed as to mortality and interest on the basis of the Canadian Life Tables No. 2 (1941), Males or Females, as the case may be, with interest at the rate of four per cent per annum. Where a periodic scheme of payment is in effect under this section, the pensioner may at any time elect to settle any amount outstanding by one sum or to arrange to pay that amount by instalments over a shorter period. The whole of the elected augmenting service of a pensioner granted his original pension as an officer shall be subject to deductions in the following manner: in respect of that part of augmenting service, which the pensioner performs subsequent to the date of his election, a deduction shall be made from his pay at the rate and in the manner set out in section 47 of the former Act; and in respect of that part of elected augmenting service, which the pensioner performed prior to the making of the election required by section 5, the whole of that augmenting service shall be subject to deductions where it is non-contributory augmenting service, to the same extent and in the manner as if that augmenting service were prior non-contributory service under Part V of the former Act and the election made to count that augmenting service were made under subsection 48(1) of the former Act and regulations relating thereto, and where it is contributory service and deductions or contributions have been made under the Act, the Public Service Superannuation Act or the Civil Service Superannuation Act, or deferred pay deductions have been made from his pay and allowances, pursuant to pay regulations applicable to his service, and those deductions or contributions have not previously been repaid to him by way of gratuity or otherwise, such deductions or contributions shall be deemed to be the deductions required by this section in respect of the period of service for which the deductions or contributions were made, or those deductions or contributions have previously been repaid to him by way of gratuity or otherwise, to the same extent and in the manner as if that augmenting service could be counted as service under subsections 56(3) and (4) of the former Act and regulations relating thereto. The sums required by this section shall, where deductions are made, be paid into the Consolidated Revenue Fund; or where transfers are applicable, be debited to the appropriate account and credited as revenues of Canada. Where a pensioner, contributing for elected augmenting service by way of repayment by instalments any amount required by section 6 or by way of making the deductions required by section 7, ceases to serve on augmenting service before payment of those instalments or deductions have been made in full, he shall be deemed to have contributed in respect of the augmenting service for which he elected and the remaining instalments or deductions shall be reserved out of his pension. Subject to subsections (3) and (5), a pensioner, upon ceasing to serve on augmenting service referred to in subsection 5(1) for any reason other than inefficiency or misconduct, shall have his pension computed for the term of service upon which his pension was originally based, together with the augmenting service elected pursuant to section 5 (the whole period hereinafter referred to in this section as the “pensionable term”) in the following manner: where he was granted a pension as a militiaman and subsequently serves the whole or any part of his augmenting service elected pursuant to section 5 as a militiaman or an officer his pension shall be if the original term of service is less than 20 years, one-fiftieth of his average annual pay and allowances during the last six years of the pensionable term, if the original term of service is 20 years or more but less than 25 years, twenty-fiftieths of his average annual pay and allowances during the last six years of the pensionable term with an addition of two-fiftieths of the said average pay and allowances for every year over 20 years of the original term and one-fiftieth of the said average pay and allowances for every year of augmenting service that the pensioner has elected to count, or if the original term of service is 25 years or over, thirty-fiftieths of his average annual pay and allowances during the last six years of the pensionable term with an addition of one-fiftieth of the said average pay and allowances for every year of service over 25 years of the original term and of the augmenting service that the pensioner elected to count; or where he was granted a pension as an officer and subsequently serves the whole or any part of his pensionable term as an officer or militiaman, his pension shall be one-fiftieth of his average annual pay and allowances during the last six years of the pensionable term for each year of the pensionable term. Notwithstanding paragraphs (1)(a) and (b), the pension of a pensioner who was granted a pension as an officer, shall not be computed on a number of years in excess of 35; or as a militiaman, shall not exceed two-thirds of the average annual pay and allowances received by him during the last three years of the term of service upon which his pension was originally based. A pensioner, where he has been granted a pension as an officer, whether he serves the whole or any part of his augmenting service as an officer or as a militiaman, shall have that pension computed, as provided in subsection (1), as an officer, or as a militiaman, whether he serves the whole or any part of his augmenting service as a militiaman or as an officer, shall have that pension computed, as provided in subsection (1), as a militiaman, provided that the Minister is satisfied, in the case of an officer, and a board composed of three officers, as provided in section 15 of the Act, certifies, in the case of a militiaman, that the circumstances of service and the cause of ceasing to serve on the augmenting service elected pursuant to paragraph 5(1)(a) are such as would give rise to entitlement to the grant of a pension if the pensioner were otherwise qualified. Where a pensioner has been granted a pension as an officer and dies while performing augmenting service or dies while in receipt of a pension computed on the pensionable term, his widow may be granted a pension computed on the pensionable term and each of his children may be granted a compassionate allowance, to the extent that they are otherwise qualified under the Act. Subject to subsection (2), where the amount of a pension computed in accordance with subsection (1) is less than the total amount of the original pension increased by one-fiftieth of the average annual pay and allowances received during the augmenting service for each year of the augmenting service, a pensioner, in lieu of entitlement to a pension computed pursuant to subsection (1), shall be entitled to an annual pension equal to the latter amount or the original pension, whichever is the greater. Subject to subsections (4) and (5), a pensioner who was granted a pension as an officer and who is absent from duty for any purpose including absence on leave without pay and allowances, or secondment where he performs continuous full-time service or employment and receives emoluments by way of pay and allowances, salary or otherwise for that service or employment, shall contribute to the Consolidated Revenue Fund, in respect of any period during which he is so absent, by making payments in accordance with subsection (2) and that period shall be counted as service for the purposes of section 9 as being augmenting service. The contributions required to be paid by a pensioner to whom subsection (1) applies shall be payable where the period does not exceed 92 days, monthly by means of a debit to his pay account, or where the period exceeds 92 days, by monthly remittances in favour of the Receiver General. When any amount payable under this section by a pensioner who was granted a pension as an officer is unpaid at the time of his retirement, that amount shall be reserved out of any pension that is payable under the Act to the pensioner by reservation out of any pension in equal instalments for a period equal to that period during which no contributions were made by him as required. A continuous period of absence from duty in excess of 60 days in respect of a pensioner, whether granted a pension as an officer or militiaman, where a forfeiture of pay and allowances is imposed, a deduction in an amount equal to the whole of the pay and allowances withheld is imposed by reason of suspension from duty, a continuous combination of periods described in paragraphs (a) and (b), or he is on leave without pay and allowances, shall not be counted as augmenting service and no contributions shall be required in respect of that period, but such period shall not break the continuity of augmenting service. A pensioner who was granted a pension as an officer and who has been absent from duty may elect within 30 days of the expiration of his absence from duty not to contribute in respect of that absence, in which case that period of absence shall not be counted as augmenting service and no contributions shall be required under this section in respect of that period. For the purpose of making deductions and computing a pension in respect of augmenting service to be counted pursuant to section 10, the pensioner shall be deemed to have been in receipt of pay and allowances during a period of absence from duty or secondment at the same rate as that which was prescribed for the rank or appointment held by him at the commencement of the period, except that if during that period his rate of pay and allowances is increased or decreased for any reason, that rate from the date it became effective shall be deemed to be the pay and allowances he was receiving; or if during a period of secondment the pensioner does not receive pay and allowances according to the appropriate regulations in effect from time to time for his service, the rate of pay and allowances he shall be deemed to receive shall be as determined by the Treasury Board. Notwithstanding any of the provisions contained in sections 5 to 11, a pensioner shall be deemed not to have elected to count augmenting service where he ceases to serve on a full-time paid basis in the forces or in the naval, army or air forces of Canada or the Canadian Forces, other than the forces, prior to completion of a period of augmenting service, as described in paragraph 5(1)(a); or he is not entitled to have his pension computed upon the pensionable term pursuant to subsection 9(1). Where the provisions of subsection (1) are applicable, all sums deducted from the pay and allowances of a pensioner or paid by him by reason of the provisions of sections 5 to 11 inclusive shall be refunded to him without interest or shall be applied, where applicable, towards the abatement of any deductions owed by the pensioner where by reason of the provisions of subsection (1) he becomes subject to deductions pursuant to Part V of the former Act and regulations relating thereto other than sections 5 to 10 inclusive and his entitlement to pension payments shall be restored retroactively to the date of election as if he had never elected. In this section, pension means an annual pension payable under the Act to a widow or child and includes a compassionate allowance payable to a child. For the purposes of this section, where, under the Act, a pension is payable to a child, the widow of the person in respect of whom that pension is payable to that child is presumed, prima facie, to be the guardian of that child. Where, upon the death of any person in respect of whom any pension becomes payable under the Act to a successor, application in writing may be made, by or on behalf of the successor, 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 that are payable by the successor and attributable to that pension, and where the Minister directs, in accordance with the application, that the whole or any part of such duties or taxes shall be paid out of the Consolidated Revenue Fund, the maximum portion of the said duties or taxes that may be paid is the proportion that the value of the pension payable to the successor is of the value of the whole estate, calculated for the purposes of determining the said duties or taxes payable in respect thereof. Where the Minister makes a direction in accordance with subsection (3), if the pension payable to the successor is payable in monthly, quarterly or semi-annual instalments, or in an annual amount, the pension shall be reduced either for a term requested by the successor in the application made under subsection (3), or during the entire period for which the pension is payable, if the successor fails to make a request in the application under subsection (3) that the pension be reduced for a term, where the pension is payable in monthly instalments, by one-twelfth of an amount, where the pension is payable in quarterly instalments, by one-quarter of an amount, where the pension is payable in semi-annual instalments, by one-half of an amount, and where the pension is payable annually, by the whole of an amount, determined by dividing the amount of the succession duties or taxes to be paid out of the Consolidated Revenue Fund by the value of a pension of $1 per annum, payable monthly, quarterly, semi-annually or annually, as the pension is payable, to a person of the age of the successor at the date of payment of the said duties or taxes out of the Consolidated Revenue Fund, calculated, in the case of a pension payable to the widow of the person in respect of whose death the pension is payable, in accordance with a(f) Ultimate Table with interest at the rate of four per cent per annum; and in the case of a pension payable to a child of the person in respect of whose death the pension is payable, at an interest rate of four per cent per annum and mortality shall not be taken into account. Where the pension of a successor is to be or is being reduced under this section for a term and the successor, being the widow of a former officer, remarries before the end of the term and the pension is suspended, if at any time the pension is resumed it shall be reduced for a term equal to the term or the balance of the term, as the case may be, during which the pension would have been reduced had it not been suspended and such reduction shall be made to the same extent and in the same manner as the pension was reduced immediately prior to the suspension. For the purposes of subsection 49(2) of the Act, a debit balance in the pay account of a former member of the forces shall be recovered in a lump sum from a gratuity; or by monthly instalments from a pension in an amount equal to 10 per cent of the net monthly pension but in any such case the person in receipt of the pension may make payments that will liquidate the debit at an earlier date. For the purposes of subsection 49(3) of the Act, where a person becomes entitled to a pension under any of Parts I to III of the Act and is required to contribute by instalments in respect of service for which no deductions have been made, during any period that the pension is not payable or is reduced to an amount that is not sufficient to pay the instalments in full, the unpaid portion of the remaining instalments shall be reserved from the pay and allowances or salary payable to the pensioner or from any other amount payable to him by Her Majesty. For the purposes of the Act and these Regulations, every person to whom the Act applies and who, on or after February 1, 1968, holds in the Canadian Forces the rank of chief warrant officer or master warrant officer, shall be treated as an officer if, immediately prior to that date, he was a member of the Canadian Army or Royal Canadian Air Force, and a militiaman if, immediately prior to that date, he was a member of the Royal Canadian Navy; and the rank of warrant officer shall be treated as a militiaman. For the purposes of sections 18 to 34, election means an election under section 26.1 of the Act; (choix) level of reduction means, in respect of a pension, one of the three amounts determined pursuant to section 26, where levels one, two and three correspond to a reduction that provides a surviving spouse with a pension that is equal to 30, 40 or 50 per cent, respectively, of a pension referred to in subparagraph 26(b)(i), if paragraph 26(b) were read without reference to supplementary benefits payable under the Supplementary Retirement Benefits Act; (niveau de réduction) officer means an officer referred to in section 26.1 of the Act; (officier) spouse means a spouse referred to in section 26.1 of the Act. (conjoint) For the purposes of section 26.1 of the Act, an officer may make an election to reduce the amount of the officer's pension not later than one year after the later of the day on which this section comes into force, and the day on which the officer and the spouse are married. Notwithstanding section 18, an officer may make an election after the expiration of the period provided for in that section where the officer has received in writing, from a member of the Canadian Forces or person employed in the Public Service whose ordinary duties included the giving of advice respecting the election, erroneous or misleading information regarding the period during which the officer could make an election; or materially erroneous or misleading information regarding the amount of the reduction of the officer's pension or the amount of the pension to which the spouse would be entitled. An election may be made under subsection (1) not later than three months after the day on which a written notice containing the correct information is sent to the officer. An election shall be made in writing and shall indicate the level of reduction in respect of the officer's pension; indicate the date of birth of the officer's spouse and the date of the spouse's marriage to the officer; and be signed and dated by the officer and signed by a witness other than the officer's spouse. An election shall be sent to the Minister, or to a person designated by the Minister, within the period referred to in section 18 or subsection 19(2), as the case may be. The election is made on the day on which it is sent. The officer, or a person acting on behalf of the officer, shall, within one year after the day on which an election is made, send to the Minister or to a person designated by the Minister a document that is evidence of the date of birth of the spouse; a document that is evidence of the marriage of the officer and the spouse; and where the name of the spouse as indicated on a document referred to in paragraph (a) is not the same as the name of the spouse as indicated on a document referred to in paragraph (b), any other document that confirms that the evidence of the birth and the marriage relates to the spouse, or a statutory declaration by which the spouse declares that the documents are in respect of the spouse. For the purposes of section 26.1 of the Act, proof of age of the officer's spouse is established, subject to subsections (2) and (3), by a birth certificate issued by a civil authority. Where a birth certificate referred to in subsection (1) cannot be obtained, proof of age of the spouse is established by a statutory declaration of the spouse in which the spouse attests to the spouse's date of birth and explains the reasons why the birth certificate cannot be obtained; and by a document that was created within five years after the date of birth of the spouse and that indicates the name of the spouse and the date of birth or age of the spouse, or at least 20 years before the day on which the election is made and that indicates the date of birth of the spouse, which document is accompanied by a statutory declaration by which a person, other than the officer or the spouse, attests that the date stated in the document is the correct date of birth of the spouse. Where a document or statutory declaration referred to in paragraph (2)(b) is to be submitted but cannot be obtained, the statutory declaration referred to in paragraph (2)(a) shall set out the reasons why the document or statutory declaration cannot be obtained. Subject to subsection (2), proof of the marriage between the officer and the spouse is established by a marriage certificate issued by a civil authority. Where a marriage certificate referred to in subsection (1) cannot be obtained, proof of the marriage between the officer and the spouse is established by a statutory declaration by which the officer or the spouse attests to the date of the marriage and explains the reasons why the marriage certificate cannot be obtained; and a document that is similar to a marriage certificate and is issued in relation to the marriage ceremony, or a statutory declaration by a person who attended the marriage ceremony, other than the officer or the spouse, attesting to the person's knowledge of the marriage. An election is considered not to have been made where any document or statutory declaration that is required by any of sections 22 to 24 is not submitted within one year after the day on which the election is made. The amount of the reduction of the monthly instalment of the pension of an officer who makes an election is equal to the amount determined as follows: calculate the actuarial present value of the pension to which the officer is entitled under Parts I to III of the Act immediately before the election, and the supplementary benefits payable in respect thereof under the Supplementary Retirement Benefits Act; convert the amount determined in accordance with paragraph (a) into a joint and survivor pension benefit that consists of a pension that is payable, during the life of the officer, by monthly instalments beginning on the first day of the month after the month in which the election is made, and that is determined taking into account the supplementary benefits payable under the Supplementary Retirement Benefits Act, as if the pension were a pension payable under Parts I to III of the Defence Services Pension Continuation Act, and a pension that is payable during the life of the surviving spouse, by monthly instalments beginning on the first day of the month after the month in which the officer died and that is equal to 30, 40 or 50 per cent, in accordance with the election made by the officer, of the pension determined in accordance with subparagraph (i), and that is determined taking into account the supplementary benefits payable under the Supplementary Retirement Benefits Act, as if the pension were a pension payable under Parts I to III of the Defence Services Pension Continuation Act; and subtract the first monthly instalment of the pension referred to in subparagraph (b)(i) from the first monthly instalment of the pension referred to in paragraph (a), and adjust the amount obtained to take into account that the reduction is effective during the lesser of the period of the life of the officer, the period of the life of the spouse, and the duration of the marriage, that the reduction becomes effective in the month referred to in section 31, and that the increase in the reduction under section 27 will apply to the reduction in each year referred to in that section. The amount of the reduction determined in accordance with section 26 is increased on January 1 of each year after the year in which the reduction is first in effect, by the amount that would be payable as a supplementary benefit under the Supplementary Retirement Benefits Act if the amount of the reduction determined under section 26 were a pension that became payable under Parts I to III of the Defence Services Pension Continuation Act on January 1 of the year in which the election was made. For the purposes of sections 26 and 27, the only demographic assumptions on which the actuarial values are to be based are those prescribed in the Canadian Forces Superannuation Regulations for the purposes of an election under 25.1 of the Canadian Forces Superannuation Act. For the purposes of the determinations referred to in sections 26 and 27, the rates of interest set out in the Recommendations for the Computation of Transfer Values from Registered Pension Plans, published by the Canadian Institute of Actuaries, effective September 1, 1993, shall be the rates in respect of fully indexed pensions. An election ceases to have effect on the earliest of the day on which the spouse dies, the day on which the annulment of the marriage of the officer and the spouse takes effect, and the day on which the divorce between the officer and the spouse takes effect. The amount of the reduction of an officer's pension, calculated in accordance with section 26, shall be subtracted from the monthly instalment of the pension payable to the officer, effective on the first day of the second month after the month in which the election is made. For the purposes of subsection 26.1(5) of the Act, an election made by an officer is deemed to be revoked on the day on which the officer is required to contribute to the Superannuation Account pursuant to subsection 5(1) of the Canadian Forces Superannuation Act. Where an election ceases to have effect pursuant to section 30, or is deemed to be revoked pursuant to section 32, the reduction ceases on the first day of the month in which the election is revoked or ceases to have effect. The pension to which a spouse is entitled on the death of the officer who had made an election is equal to an amount determined in accordance with subparagraph 26(b)(i), if paragraph 26(b) were read without reference to supplementary benefits payable under the Supplementary Retirement Benefits Act.