Canada Gazette, Part I, Volume 154, Number 35: Regulations Amending the Garnishment and Attachment Regulations and the Pension Diversion Regulations

August 29, 2020

Statutory authority
Garnishment, Attachment and Pension Diversion Act

Sponsoring department
Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Executive summary

Issues: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78) received royal assent on June 21, 2019.

Because of the changes made to Part III of the Family Orders and Agreements Enforcement Assistance Act (FOAEAA) and to Parts I and II of the Garnishment, Attachment and Pension Diversion Act (GAPDA), three regulations need to be amended.

Description: The Denial of Licences for Family Orders and Agreements Enforcement Regulations (Licence Denial Regulations) prescribe forms that a provincial enforcement service (PES) is required to complete to make a licence denial application and to terminate licence denial under Part III of the FOAEAA. They also provide a template for the affidavit that is required in support of an application. The proposed amendments to the Licence Denial Regulations reflect the changes to the Act, which removed the requirement to submit an affidavit and the need for information to be provided using prescribed forms. Accordingly, the prescribed application and request for termination forms and the affidavit template would be removed from the schedules. The Regulations would instead list the information required for licence denial applications.

The Garnishment and Attachment Regulations (Garnishment Regulations) and the Pension Diversion Regulations (Diversion Regulations) contain addresses and methods for service to effect salary garnishment against parliamentarians, federal employees and contractors, and diversion of federal pension benefits paid under the superannuation acts listed in the schedule to the GAPDA. To align with changes to Parts I and II of the GAPDA, the proposed amendments to the regulations would reflect new defined terms; provide greater flexibility for service of documents and responses by allowing for the submission of documents and responses by electronic means where an agreement is in place; include a provision specifying that salary garnishment would cease to be binding six months after the last salary payable to a former employee is paid; and allow a PES to apply for pension diversion with a copy of a support order that is not court certified and a statement of arrears. Other amendments would update the addresses where documents are to be submitted.

Rationale: The regulatory changes are required to ensure a comprehensive legal framework and correct information; better assist provinces and territories (PTs) with their enforcement activities; improve the efficiency of support enforcement tools by reducing burdens placed on PESs, creditors and courts; and allow the submission of documents by electronic communications.

Costs associated with the regulatory changes would be low. Simplifying processes would benefit stakeholders, including federal departments, parliamentary entities, PTs, courts and support creditors, and would lower their costs. Any federal costs associated with effecting the changes will be absorbed through existing resources and funding announced in the Budget 2017 for the implementation of amendments to federal support enforcement legislation. Costs for PTs would include system changes and staff training. Existing personnel will carry out these tasks.

Issues

Part III of the Family Orders and Agreements Enforcement Assistance Act (FOAEAA) and Parts I and II of the Garnishment, Attachment and Pension Diversion Act (GAPDA) were amended to increase the efficiency and efficacy of federal, provincial and territorial (FPT) support enforcement tools. Because of those changes and other changes made to FPT legislation and practices, the three regulations noted below are now outdated and inaccurate.

Background

The FOAEAA and the GAPDA are tools to help enforce support obligations. The FOAEAA, Part III, allows the suspension or denial of federal licences, including Canadian passports, to a support debtor who is in arrears. The GAPDA, Part I, allows the garnishment of federal salaries and payments to enforce any civil debt, including a support obligation. The GAPDA, Part II, allows for the diversion of certain federal pension benefits to pay support orders.

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (S.C. 2019, c. 16) [Bill C-78] received royal assent on June 21, 2019.

The enactment of Bill C-78 amended the FOAEAA, Part III, and the GAPDA, Parts I and II, as described below. Regulatory amendments are required to reflect and support the implementation of changes made to FPT legislation and practices. Some legislative amendments to the GAPDA came into force upon royal assent, while other amendments will come into force at the same time as amendments to the GAPDA regulations noted below. Legislative amendments to the FOAEAA, Part III, are expected to come into force on November 12, 2021.

FOAEAA, Part III — Licence Denial Regulations

Federal licence denial under the FOAEAA, Part III, applies to individuals who have failed to meet support obligations for three payment periods or have accumulated arrears of at least $3,000. At the request of a provincial enforcement service (PES), the federal government can suspend, deny or refuse to renew licences listed in the schedule to the Act, including Canadian passports.

Currently, the PES must submit an application in the form prescribed by the Licence Denial Regulations as well as an affidavit in the prescribed form.

The Minister of Justice receives applications and provides the ministers who are responsible for the federal licences with the necessary information to help them confirm the identity of the debtor. Those ministers must suspend the debtor’s licence, or refuse to issue or renew a licence to the debtor. To stop a suspension or denial action, the PES must submit a request to the Minister of Justice in the prescribed form.

Legislative amendments to the FOAEAA, Part III, included in Bill C-78

  • removed the requirement that a PES submit an affidavit in support of an application; and
  • replaced the requirement that forms be prescribed by regulations with the requirement that they be in a form approved by the Minister of Justice.

GAPDA, Part I — Garnishment Regulations

The GAPDA, Part I, provides for the garnishment of salaries and payments to senators, members of Parliament, and federal employees and contractors. A creditor must serve an application, a copy of the order against the debtor, and a garnishee summons on the appropriate garnishment registry of Her Majesty, the Senate, House of Commons or other parliamentary entity listed in Division IV of the GAPDA, Part I.

The Garnishment and Attachment Regulations (Garnishment Regulations) list the addresses of Department of Justice garnishment registries that receive and review all garnishment documents pertaining to Crown employees and contractors. Those registries then forward the documents and instructions to departmental compensation offices. Other registries are specified for garnishments relating to parliamentary entities.

Under the GAPDA, Part I, garnishment documents can be served or responded to by any method permitted under provincial or territorial law or as prescribed in the Garnishment Regulations. The Garnishment Regulations currently allow a PES to serve documents electronically in a usable format. Although not limited to a PES, a similar rule is prescribed for methods of response.

Creditors currently serve garnishee summonses issued in Nunavut and in the Northwest Territories on the Northwest Territories Garnishment Registry, and garnishee summonses issued in the Yukon on the garnishment registry located in that territory. Together these garnishment registries receive on average fewer than five garnishee summonses per year. Although the registries rarely receive garnishee summonses, personnel, training and other expenditures are needed to ensure compliance with registry obligations under the GAPDA.

Legislative amendments to the GAPDA, Part I,

  • defined the terms provincial enforcement service, order and parliamentary entity and changed terminology to ensure consistency between French and English versions;
  • provided greater flexibility for service of documents and responses, allowing regulations that permit the electronic exchange of documents where an agreement is in place; and
  • provided regulatory-making authority to add periods and circumstances where garnishee summonses cease to be binding.

On June 22, 2017, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures amended the Parliament of Canada Act to provide for the appointment and tenure of the Parliamentary Budget Officer (PBO) to be that of an officer of Parliament. The PBO was also included in the garnishment regime under the GAPDA, Part I. Amendments are required to prescribe an address for service of documents on the PBO for the purposes of the GAPDA garnishment regime.

GAPDA, Part II — Diversion Regulations

The GAPDA, Part II, currently provides for the diversion of designated federal pension benefits to satisfy support orders. A support creditor, or a person on behalf of a support creditor, can apply for pension diversion by submitting to the appropriate minister the prescribed information, a certified copy of the support order and any other prescribed documentation. Copies of any varied financial support orders must also be certified.

When a person fails to pay his or her support obligations, the amounts owed accumulate. This accumulation is called the “arrears.” Only arrears that are included in an order are currently enforceable under the GAPDA, Part II. Under some pension acts, a pension recipient can choose to start receiving his or her pension benefits later instead of upon retirement. This is a deferral. Under section 35.1 of the GAPDA, where a person entitled to a deferred annuity under the Public Service Superannuation Act is not paying his or her support obligation, a support creditor can ask the court to make an order deeming the person to have opted for an immediate annual allowance. Once the payment of pension benefits to the person has begun, the diversion can proceed.

The Pension Diversion Regulations (Diversion Regulations) set out the addresses where pension diversion applications are to be sent by mail.

Legislative amendments to the GAPDA, Part II, included in Bill C-78

  • changed terminology used in various provisions;
  • removed the certification requirements from the Act;
  • provided that a PES could make an application on behalf of a person;
  • provided that a PES could enforce arrears that were not set out in a support order; and
  • extended the deeming remedy under section 35.1 to pension benefits payable under the Canadian Forces Superannuation Act and the Reserve Force Pension Plan Regulations.

The Judges Act and the Federal Courts Act were amended by the Economic Action Plan 2014 Act, No. 2 on December 16, 2014. The amendments brought prothonotaries under the same annuity and administrative processes that apply to federally appointed judges. Consequential amendments to the GAPDA added the term prothonotaries to the provisions applicable to judges subject to the Judges Act.

Currently, the Diversion Regulations prescribe the deductions applicable to pension benefits before diversion is applied. These deductions include premium payments for the recipient’s enrollment in a group life insurance plan listed in Schedule I of the Diversion Regulations. With time, group life insurance plans have changed; new ones have been established while others no longer exist. Sections 1 to 3 of Schedule I are therefore inaccurate.

Objective

The proposed regulatory amendments would support implementation of the legislative amendments made to Part III of the FOAEAA and to Parts I and II of the GAPDA. They further the goal of improving the efficiency and efficacy of the support enforcement regime, and ensure that the legal framework is comprehensive by ensuring consistency between the regulations and their enabling acts. The proposed regulatory amendments would also update provisions to correct inaccuracies as well as to ensure that the regulations are reflective of other changes to FPT legislation and practices. The regulatory amendments would better assist and guide the PTs with their enforcement activities and foster better FPT cooperation.

Reduction of burdens

The Licence Denial Regulations amendments would reduce burdens for PESs and increase efficiency by removing the need to submit an affidavit. Removing the application form from these Regulations would also provide administrative flexibility and efficiency to the federal government should modifications to the information requirements be needed.

The Diversion Regulations amendments would reduce burdens and increase efficiency for support creditors whose order is being enforced by a PES. Support creditors would no longer need to obtain certification of the order or a court order for arrears before a PES could apply on their behalf for pension diversion. This would in turn reduce the use of court time and facilitate the process for PESs.

Efficient submission of documents

Regulatory amendments would ensure that creditors submit their garnishment and diversion documents to the correct address. Regulatory amendments would also provide greater certainty as to when documents and responses are deemed submitted, and as to when garnishment terminates.

Submission of documents by electronic communications would improve the efficiency of the garnishment and diversion processes by reducing reliance on paper and providing for cost-effective management of records. The ability to submit documents electronically would facilitate the enforcement efforts of provinces and territories and foster FPT cooperation. It would also take advantage of technological capacity.

To centralize the processing of garnishee summons where the numbers do not warrant a regional service and better allocate Department of Justice resources, the proposed Garnishment Regulations would transfer the registry function for the territories to the registry located in the National Capital Region (NCR).

Description

In light of the changes in federal legislation and practices described above, the three regulations would be amended as follows.

FOAEAA, Part III — Licence Denial Regulations

Amendments would remove the forms in Schedules 1 and 3 of the Licence Denial Regulations. The Regulations would list the information to be included in a licence denial application, which would be the same as is currently required in Schedule 1. A PES would submit licence denial applications and requests to terminate licence denials in a form approved by the Minister of Justice, as opposed to a form prescribed in the Regulations.

Amendments would also remove the affidavit in Schedule 2 of the Regulations, consistent with the removal of this requirement in Bill C-78.

GAPDA, Part I — Garnishment Regulations

Periods and circumstances

Garnishee summonses, which are issued in accordance with federal or provincial garnishment law, have differing periods of validity across the country. Garnishee summonses served on a federal department binds Her Majesty as a whole and not solely the department on which it was served. A summons is actioned by the compensation services of the department and may continue to bind Her Majesty for many years after the debtor has left his or her employment at that department. If a different department in another city or province later employs that employee while the garnishee summons is still valid, the summons is binding on the new department, but that department may not be aware of it as there is no central database with all Crown employee information. As a result, departments are at risk of unknowingly not complying with legal obligations.

The same issue occurs for parliamentary entities where a garnishee summons served on a parliamentary entity (for example, the Senate) could bind that parliamentary entity (i.e. the Senate) for many years after the debtor has left his or her employment with the parliamentary entity. This creates risks where an employee may work for a parliamentary entity where a garnishee summons is binding, leave to work for a separate employer (for example, a federal department or another parliamentary entity), only to return years later to the parliamentary entity where the summons is still binding. Due to the mobility of federal employees, it is difficult to keep track of their various periods of employment within the government while garnishee summonses may still be binding.

The regulatory amendment would specify that salary garnishment would cease six months from the date the last salary payable to a former employee of Her Majesty or parliamentary entity is paid. The specified period is long enough to facilitate the uniform management of garnishee summonses across Canada while ensuring that a debtor does not leave a job to avoid garnishment, only to return to the same job. The regulatory authority allows for the addition of other periods and circumstances as needed.

Addresses

An amendment would prescribe a registry address in section 4.1 of the Garnishment Regulations for the service of garnishment documents relating to the PBO.

Because very few garnishment applications are received from the territories, it would be more efficient to transfer the registry responsibilities for Nunavut, Yukon and the Northwest Territories to the registry located in the National Capital Region. Amendments would therefore effect this transfer of responsibility. Other amendments would update the addresses for the other registries in sections 4 and 4.1.

Schedule to the Garnishment Regulations

Legislative amendments added the PBO to the garnishment regime under the GAPDA, Part I, and defined the terms order and parliamentary entity in section 2 of the Act. The GAPDA, Part I, application form (JUS form 339) would be amended to reflect these changes.

GAPDA, Parts I and II — Garnishment Regulations and Diversion Regulations

Terminology

Amendments to the Garnishment Regulations would reflect the three definitions added to Part I of the GAPDA. The definition of provincial enforcement service in section 2 of the Garnishment Regulations would be repealed, as the term is now defined in section 2 of the Act. The words “or judgment” would be removed from the provisions that refer to “order or judgment,” as the definition of order added to Part I of the GAPDA includes a judgment. Finally, the defined term parliamentary entity, which includes the PBO, would replace the list of the parliamentary entities’ names in the appropriate provisions. These amendments would also ensure that the regulatory provisions apply to the PBO.

Amendments would also reflect the terminology now being used in Parts I and II of the GAPDA. For example, in the French version of sections 7 and 11 of the GAPDA, Part I, the words “actes” and “comparaître” were respectively changed to “documents” and “façon de donner suite.” Another example, in the English version of section 36 of the GAPDA, Part II, the word “ordinarily” was changed to “habitually.” The appropriate sections of the two regulations would be similarly changed.

Submission of documents

The Garnishment Regulations and the Diversion Regulations would be amended to allow, in addition to methods permitted under provincial and territorial law, the exchange of documents by regular mail, by registered mail and by any electronic means that has been agreed on by the applicable registry or pension centre and the other party. This would extend the application of the current provision in the Garnishment Regulations, which allows PESs to serve garnishment documents by electronic means, to all creditors, and it would allow the exchange of documents electronically under the Diversion Regulations.

These amendments would ensure that the electronic format used is compatible with the computer systems of both the creditor and the registry or pension centre while ensuring that the registry or pension centre receives the documents in a manner that is consistent with its privacy obligations. They also provide flexibility to enable the use of new technologies as they become available. The electronic exchange of documents has proven to be reliable, easy to operate and a better use of available resources in other settings, such as in the administration of the FOAEAA. Making the processing of documents more efficient reduces the use of paper and ink and decreases the risk attributable to human error.

Proposed amendments would remove any reference to paper submission in the Garnishment Regulations and the Diversion Regulations, which will allow both paper and electronic submissions.

GAPDA, Part II — Diversion Regulations

PES

The GAPDA was amended to explicitly acknowledge that a PES can make applications on behalf of support creditors and receive pension diversion payments for their benefit. Amendments to the Diversion Regulations would reflect this.

Certification

Legislative amendments to the GAPDA removed the need to submit a certified copy of a support order with a pension diversion application or of a varied financial support order to effect a variation. The Diversion Regulations would maintain the certification requirement to apply for pension diversion, to obtain information under section 35.3 of the GAPDA, or to effect a variation. However, the requirement would not apply if a PES submits the documents. Removing the certification requirement for PESs would significantly streamline the diversion process for PESs by eliminating burdens (i.e. time and cost) involved for support creditors and PESs to obtain and submit a certified copy of the order. By eliminating these additional steps, a pension diversion application could be made sooner — without additional cost — and support received sooner, thereby increasing access to justice and reducing the burden on courts. Support creditors, or a person or PES on the support creditor’s behalf, would be required to declare that the information is valid under section 3 of the Diversion Regulations.

Statement of arrears

Enforcing arrears, including those that accumulate between the date the application is made and the date the diversion of benefits begins, is costly and cumbersome, as support creditors must address the court to obtain an order setting those arrears. The legislative amendments to Part II of the GAPDA allow a PES to enforce arrears in relation to a pension diversion application by submitting a statement of arrears. This reduces the burdens placed on support creditors by eliminating the need to return to court, thereby reducing the burden on courts.

A new section in the Diversion Regulations would specify the information that a PES must provide in a statement of arrears.

Deemed option for annual allowance (section 35.1)

As the remedy available to support creditors under section 35.1 of the GAPDA is now applicable to pension benefits payable under the Canadian Forces Superannuation Act and the Reserve Force Pension Plan Regulations, the definition of plan member in section 2, paragraph 17(a) and section 18 of the Diversion Regulations needs to be amended to refer to those benefits.

Addresses

Section 5 of the Diversion Regulations would be amended to update the mailing addresses for pension diversion applications. This amendment would reflect changes to government office locations and changes to the names of government institutions. The Order in Council SI/84-6, which designates responsible ministers for the purposes of Part II of the GAPDA, would also be amended to remove any discrepancies with the Diversion Regulations.

Prothonotaries

Paragraph 5(b) of the Diversion Regulations would be amended to add a reference to prothonotaries to whom the Judges Act applies, in order to indicate to prospective applicants that pension diversion applications concerning prothonotaries should be mailed to the mailing address provided for pension diversion applications concerning judges.

Pension benefit deductions

Group life insurance plans in sections 1 and 3 of Schedule I to the Diversion Regulations are no longer active and would be removed, while the Public Service Management Insurance Plan established pursuant to the Financial Administration Act would be added. Section 2 of Schedule I would be amended to remove the reference to specific Royal Canadian Mounted Police (RCMP) life insurance plans in favour of a general reference to RCMP group life insurance to encompass all of the RCMP’s group life insurance plans.

Regulatory development

Consultation

The majority of amendments to the three regulations are required following amendments made to their enabling statute and other changes made to FPT legislation and practices.

The key stakeholders impacted by the proposed amendments to the regulations are the Department of Justice Family Law Assistance Services, garnishment registries, pension centres, other federal departments, Crown corporations subject to garnishment under the GAPDA and parliamentary entities that receive and process licence denial under the FOAEAA, and garnishment or diversion applications under the GAPDA. These stakeholders were supportive of the legislative amendments made to the FOAEAA, Part III, and to the GAPDA, Parts I and II. They were also consulted on the proposed regulatory amendments that implement the legislative amendments and the other technical amendments and were supportive of these changes.

Other stakeholders are PESs, which submit licence denial, garnishment and diversion applications on behalf of support creditors. The proposed amendments to the regulations are the result of, among other things, FPT collaboration on issues of support enforcement and the improvement of federal support enforcement tools. Feedback from provincial and territorial officials on proposed changes has been positive. Collaboration will continue through regular FPT conference calls of the Enforcement Sub-committee of the Coordinating Committee of Senior Officials – Family Justice and the Maintenance Enforcement Program Directors Group. Since PES systems must interact properly with the FOAEAA system, FPT collaboration will also continue through the FPT FOAEAA Systems Working Group (which specifically discusses technical changes and enhancements to the FOAEAA system) to ensure that the Licence Denial Regulations are operationalized properly.

The speakers of the Senate and of the House of Commons will be consulted in accordance with sections 24 and 29 of the GAPDA prior to making the Garnishment Regulations. It is anticipated that the consultations will take place during the prepublication period.

Modern treaty obligations and Indigenous engagement and consultations

There are no modern treaty obligations relevant to this proposal and there was no specific engagement or consultation with Indigenous peoples.

Instrument choice

A regulatory amendment was the only option considered. The legislation requires that certain details of the legislative framework be set out in the regulations. As regulations are law, they continue to be in force until amended. Without the proposed regulatory amendments, there would be a lack of consistency in terminology used in related statutory instruments; inaccuracies in the three regulations; burdens and paper-only submissions that would continue to reduce the efficiency of the enforcement measures; and a lack of certainty as to when garnishment ends. Without the proposed regulatory amendments, policy choices made by Parliament on these issues would be ineffective and the acts and regulations would be internally inconsistent.

Regulatory analysis

Benefits and costs

FPT system changes will be required to implement changes to the licence denial application form and the removal of the affidavit form under the FOAEAA, Part III. PTs were consulted and will be responsible for their implementation costs. The cost is not expected to be significant because the necessary work is expected to be minor (e.g. amending existing systems and forms, staff training related to the legislative amendments) and will be done by existing personnel in the PTs.

The territories’ registries combined receive fewer than five new garnishment files every year and few are presently active. The transfer of registry responsibilities from the territories’ registries to the registry located in the NCR is expected to result in minimal impacts and costs given the low volume of applications from these sites. There would be no additional costs for creditors.

Once the proposed regulatory amendments under the GAPDA are made, FPT governments may consider implementing electronic submission of documents. Electronic submission of documents would benefit the provinces and territories and increase efficiencies by ensuring that the documents are processed in a timely fashion, and by reducing the costs associated with printing, postage and document retention, while providing better protection of privacy. At the federal level, garnishment files would continue to be processed under the current information system at no additional cost. The needs of PTs may vary from one jurisdiction to the next and would be assessed on a case-by-case basis. Creditors and PESs would be able to continue to submit documents by any methods presently used.

The regulatory amendments to the Diversion Regulations under the GAPDA, Part II, will allow a PES to apply on behalf of a support creditor with an uncertified copy of the support order and a statement of arrears, instead of a court order for arrears. This would significantly increase the efficiency and effectiveness of this enforcement measure by alleviating the burden placed on support creditors to obtain a certified copy of the court order and the need to go back to court to obtain another court order for any arrears that have accrued before the diversion was begun.

Small business lens

The small business lens does not apply to these amendments, as the amendments do not impact or impose any burden on small businesses.

One-for-one rule

The one-for-one rule does not apply to these amendments, as the amendments do not impose any administrative costs on business. In addition, the proposal does not result in a new regulatory title.

Regulatory cooperation and alignment

Enforcement of judgment debts, including support obligations, is primarily a provincial and territorial responsibility. However, the federal government provides tools to assist creditors in their enforcement activities. There are ongoing cooperation efforts to align FPT enforcement tools. Harmonizing process requirements across jurisdictions increases their efficiency.

The regulatory proposal would align federal support enforcement tools with requirements found in provinces and territories. For example, under provincial and territorial law, PESs enforce support obligations — including arrears — without the need to obtain a certified copy of the order and without an accompanying affidavit.

FPT collaboration will continue to ensure that PES systems interact effectively with the FOAEAA system.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) was done for Bill C-78. Although current federal family legislation is gender-neutral and there are no presumptions that favour mothers or fathers, there are gender dimensions to child and spousal support. Canadian support enforcement data show that over 90% of payors are men and over 90% of recipients are women.

Given the significant gender imbalance in the receipt of child and spousal support, men and women will likely experience the effects of amendments to enforcement tools differently. Men who default on their support obligations may experience more pressure to pay. Women, who are more likely to lead single-parent families and experience greater economic challenges following separation and divorce, may see support payments increase.

The majority of proposed amendments to the three regulations are administrative and required following amendments made to their enabling statute. They are not expected, in and of themselves, to have any differential impacts on the basis of gender, sex, age, race, etc.

Rationale

Regulatory amendments are needed to support the implementation of changes to the FOAEAA and the GAPDA introduced in Bill C-78 and other acts. Regulatory amendments are the only means to ensure consistent terminology between the enabling act and the regulations, to correct current inaccuracies and ensure the regulations are reflective of changes to FPT legislation and practices.

Failure to amend the regulations would result in less efficient support enforcement tools. The FOAEAA, Part III, would continue to require an affidavit and the GAPDA, Part II, to require a certified order and an order setting out arrears, which impose unnecessary burdens on PESs. Allowing the exchange of documents by an electronic means that has been agreed on by the applicable registry or pension centre and the other party would improve processes under the GAPDA. Electronic documents, as opposed to hard copies, also allow for cost-effective management of records. The amendment would save staff time in receiving, processing and filing each document served in paper format and would allow the use of technology to transfer information in a manner that is more secure than the present manual exchange of documents.

Without these regulatory amendments, the FOAEAA, Part III, forms would continue to be prescribed, thereby reducing the federal government’s flexibility to amend the forms as needed.

Under the GAPDA, Part I, not limiting the period of validity of garnishee summonses exposes the Crown to the risk of not complying with legal obligations to garnish. The impact of transferring registry responsibilities for Yukon, Nunavut and the Northwest Territories to the NCR Registry would be minimal, with any costs absorbed through existing resources, given the low volume of applications from these sites.

Implementation

The Garnishment Regulations and the Diversion Regulations would come into force at the same time as the remaining legislative amendments made to the GAPDA. The Licence Denial Regulations, along with the legislative amendments made to the FOAEAA, Part III, are expected to come into force on November 12, 2021.

Implementation of these amendments is carried out by the garnishment registries, the pension centres or the Department of Justice Family Law Assistance Services, all of which are responsible for administering garnishment, diversion and licence denial processes within the federal government departments, the prescribed Crown corporations and the parliamentary entities. Compliance with the GAPDA and the FOAEAA, Part III, and their regulations continues to be assured by those parties. Any costs associated with these amendments will be absorbed through existing resources and funding announced in the Budget 2017 for the implementation of amendments to federal support enforcement legislation.

Collaboration is ongoing with the provinces and territories to ensure effective and efficient implementation.

Contact

Sylviane Deslauriers
Counsel
Family and Children’s Law Team
Family Law and Youth Justice Policy Section
Department of Justice
Email: commentsFOAEAA-GAPDA.commentairesLAEOEF-LSADP@justice.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to sections 12footnote a, 24footnote b, 29 and 46footnote c of the Garnishment, Attachment and Pension Diversion Actfootnote d, proposes to make the annexed Regulations Amending the Garnishment and Attachment Regulations and the Pension Diversion Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent by email to commentsFOAEAA-GAPDA.commentairesLAEOEF-LSADP@justice.gc.ca.

Ottawa, August 21, 2020

Julie Adair
Assistant Clerk of the Privy Council

Regulations Amending the Garnishment and Attachment Regulations and the Pension Diversion Regulations

Garnishment and Attachment Regulations

1 The long title of the Garnishment and Attachment Regulationsfootnote 1 is replaced by the following:

Garnishment and Attachment Regulations

2 The heading before section 1 and sections 1 and 2 of the Regulations are replaced by the following:

Definition

2 In these Regulations, Act means the Garnishment, Attachment and Pension Diversion Act. (Loi)

3 Section 3 of the French version of the Regulations is replaced by the following:

3 La demande visée aux paragraphes 6(1) ou 18(1) de la Loi est présentée en la forme prévue à l’annexe.

4 (1) Paragraphs 4(1)(f) to (h) of the Regulations are replaced by the following:

  • (f) if the garnishee summons is issued in Quebec, either in the National Capital Region described in the schedule to the National Capital Act or by the provincial enforcement service in relation to an order made in the National Capital Region or outside Quebec for the payment of maintenance, alimony or support,
    • Garnishment Registry
      Department of Justice
      284 Wellington Street
      Ottawa, Ontario K1A 0H8;
  • (g) subject to paragraph (h), if the garnishee summons is issued in Ontario,
    • Garnishment Registry
      Department of Justice
      Ontario Regional Office, Toronto
      Suite 400
      120 Adelaide Street West
      Toronto, Ontario M5H 1T1;
  • (h) if the garnishee summons is issued in Ontario, either in the Northwest Region, Northeast Region, East Region or Central East Region prescribed under the Courts of Justice Act, R.S.O. 1990, c. C.43, or by the provincial enforcement service in relation to an order made in one of those regions or outside Ontario for the payment of maintenance, alimony or support,
    • Garnishment Registry
      Department of Justice
      284 Wellington Street
      Ottawa, Ontario K1A 0H8;

(2) Paragraph 4(1)(j) of the Regulations is replaced by the following:

  • (j) if the garnishee summons is issued in Saskatchewan,
    • Garnishment Registry
      Department of Justice
      Prairie Region — Saskatoon Office
      Suite 410
      410 - 22nd Street East
      Saskatoon, Saskatchewan S7K 5T6;

(3) Subsection 4(1) of the Regulations is amended by adding “and” at the end of paragraph (l) and by replacing paragraphs (m) to (o) with the following:

  • (m) if the garnishee summons is issued in Yukon, the Northwest Territories or Nunavut,
    • Garnishment Registry
      Department of Justice
      284 Wellington Street
      Ottawa, Ontario K1A 0H8.

5 (1) The portion of section 4.1 of the Regulations before paragraph (a) is replaced by the following:

4.1 Service of documents on a parliamentary entity in connection with garnishment proceedings permitted by Division IV of Part I of the Act must be effected at the following places:

(2) Section 4.1 of the Regulations is amended by striking out “and” at the end of paragraph (e) and by replacing paragraph (f) with the following:

  • (f) in the case of the Parliamentary Protective Service,
    • Garnishment Registry
      Parliamentary Protective Service
      Office of the Chief Legal Counsel
      Room 505
      155 Queen Street
      Ottawa, Ontario K1A 0B8; and
  • (g) in the case of the office of the Parliamentary Budget Officer,
    • Garnishment Registry
      Office of the Parliamentary Budget Officer
      Room 914
      99 Bank Street
      Ottawa, Ontario K1A 0A9.

6 Section 4.2 of the Regulations is replaced by the following:

4.2 (1) Service in accordance with sections 4 and 4.1 may be effected by mail, registered mail or any means of electronic communication that is agreed to by the recipient.

(2) Service in accordance with sections 4 and 4.1 is deemed to be effected

  • (a) in the case of service by fax or another means of electronic communication, on the day on which it is received, unless it is received after 5:00 p.m. local time or on a day that is a Saturday or a holiday, in which case service is deemed to be effected the following day that is not a Saturday or a holiday; and
  • (b) in the case of service by mail or registered mail, on the day on which it is received.

7 (1) The heading before section 4.3 of the French version of the Regulations is replaced by the following:

Façon de donner suite

(2) The portion of section 4.3 of the Regulations before paragraph (a) is replaced by the following:

4.3 Her Majesty or a parliamentary entity may respond to a garnishee summons by notice indicating

(3) Section 4.3 of the Regulations is renumbered as subsection 4.3(1) and is amended by adding the following:

(2) The notice may be sent by mail, registered mail or any means of electronic communication.

8 Section 4.4 of the Regulations is replaced by the following:

4.4 If the debtor is no longer an employee of Her Majesty or a parliamentary entity, a garnishee summons ceases to bind Her Majesty or the parliamentary entity six months after the day on which the last payment of salary to the debtor was made.

9 The portion of the form of the schedule to the Regulations after “APPLICATION UNDER PART 1 OF THE GARNISHMENT, ATTACHMENT AND PENSION DIVERSION ACT AND SECTION 3 OF THE GARNISHMENT AND ATTACHMENT REGULATIONS” and before Part 1 is replaced by the following:

A copy of the order against the debtor and a garnishee summons must be served with this application at the place specified in the Garnishment and Attachment Regulations.

Une copie de l’ordonnance visant le débiteur et un bref de saisie-arrêt doivent être signifiés avec cette demande à l’endroit prévu par le Règlement sur la saisie-arrêt.

10 The form of the schedule to the Regulations is amended by adding the following after item 8.3:

8.4

Debtor is a member of the staff of the office of the Parliamentary Budget Officer

Le débiteur est un membre du personnel du bureau du directeur parlementaire du budget

11 Paragraph 16(a) of the form of the schedule to the Regulations is replaced by the following:

(a)

Name of contracting entity (department/Crown corporation/parliamentary entity)

Nom de l’entité titulaire du contrat (ministère, société d’État, entité parlementaire)

12 Items 20 and 21 of the form of the schedule to the Regulations are amended by replacing “Judgment or order” with “Order”.

Pension Diversion Regulations

13 The long title of the Pension Diversion Regulationsfootnote 2 is replaced by the following:

Pension Diversion Regulations

14 Section 1 of the Regulations and the heading before it are repealed.

15 The definition plan member in section 2 of the Regulations is replaced by the following:

  • plan member means a person who is or may be entitled to a pension benefit under the Public Service Superannuation Act, under Part I of the Canadian Forces Superannuation Act or under the Reserve Force Pension Plan Regulations and against whom there is a financial support order. (participant au régime)

16 (1) The portion of subsection 3(1) of the Regulations before paragraph (a) is replaced by the following:

3 (1) An application referred to in subsection 33(1) of the Act shall be signed by the applicant or the person or provincial enforcement service making the application on the applicant’s behalf and shall contain the following information:

(2) Clause 3(1)(a)(i)(C) of the Regulations is replaced by the following:

  • (C) most recent address known to the applicant or the person or provincial enforcement service making the application and the year that the recipient was known to reside at that address,

(3) Clauses 3(1)(a)(i)(G) and (H) of the Regulations are replaced by the following:

  • (G) most recent place of employment in the public service known to the applicant or the person or provincial enforcement service making the application, and
  • (H) most recent year of employment in the public service known to the applicant or the person or provincial enforcement service making the application,

(4) Subparagraph 3(1)(a)(iii) of the English version of the Regulations is replaced by the following:

  • (iii) any other information that would aid in establishing the recipient’s identification;

(5) Paragraph 3(1)(d) of the Regulations is replaced by the following:

  • (d) where the application is made on behalf of the applicant by another person or a provincial enforcement service, that person’s or provincial enforcement service’s full name, address and legal relationship to the applicant;

(6) Paragraph 3(1)(f) of the French version of the Regulations is replaced by the following:

  • f) le montant qui, à la date de la requête, est payable au titre de l’ordonnance de soutien financier en des versements périodiques, en une somme globale ou en une combinaison des deux;

(7) Subsection 3(1) of the Regulations is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):

  • (g) a declaration that the information in the application is correct and that the information was provided for the purpose of applying for a diversion of a pension benefit under the Act.

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

(2) If an applicant or a person or provincial enforcement service making an application is unable to provide the recipient’s date of birth but provides other information sufficient to enable the Minister to identify the recipient within a reasonable time, the requirement that the application contain the recipient’s date of birth shall be waived.

17 (1) The portion of section 4 of the Regulations before paragraph (a) is replaced by the following:

4 An application referred to in subsection 33(1) of the Act shall be accompanied by the following documentation:

(2) Paragraph 4(b) of the Regulations is repealed.

(3) Section 4 of the Regulations is amended by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

  • (d) a certified copy of the financial support order or, if the application is made by a provincial enforcement service, a copy of that order.

18 The Regulations are amended by adding the following after section 4:

4.1 (1) A statement of arrears of maintenance, alimony or support submitted under subsection 33(2.2) of the Act shall contain the following information:

  • (a) the recipient’s name;
  • (b) the applicant’s name;
  • (c) if known, the recipient’s social insurance number and date of birth;
  • (d) if known, the recipient’s pension, annuity or superannuation number;
  • (e) the amount of the arrears, including interest; and
  • (f) a declaration made by the provincial enforcement service that the information in the statement is correct and that the information was provided for diversion of a pension benefit under the Act.

(2) The statement of arrears may accompany the application made under subsection 33(1) of the Act or may be submitted later in accordance with section 5.

19 Section 5 of the Regulations is replaced by the following:

5 (1) An application referred to in subsection 33(1) of the Act and a statement of arrears of maintenance, alimony or support shall be sent,

  • (a) if the recipient was a member of the Canadian Forces, to
    • The Minister of Public Services and Procurement Canada
      Government of Canada Pension Centre – Mail Facility
      150 Dion Boulevard
      P.O. Box 9500
      Matane, Quebec G4W 0H3;
  • (b) if the recipient was a judge or prothonotary to whom the Judges Act applies, to
    • The Minister of Justice
      Attention: General Counsel, Legal Services
      Office of the Commissioner for Federal Justice Affairs 99 Metcalfe Street, 8th Floor
      Ottawa, Ontario K1A 1E3;
  • (c) if the recipient was a member of the Senate, to
    • President of the Treasury Board
      Attention: Human Resources, Senate of Canada
      Parliament Buildings
      Ottawa, Ontario K1A 0A4;
  • (d) if the recipient was a member of the House of Commons, to
    • The Minister of Public Services and Procurement Canada
      Attention: Pension and Entitlement Officer – Members of Parliament Retiring Allowances
      Pension Policy and Advisory Services
      1451 Coldrey Avenue, 1st Floor
      Ottawa, Ontario K1A 0S5;
  • (e) if the recipient was a member of the Royal Canadian Mounted Police, to
    • The Minister of Public Services and Procurement Canada
      Government of Canada Pension Centre – Mail Facility
      150 Dion Boulevard
      P.O. Box 8500
      Matane, Quebec G4W 0E2; and
  • (f) in any other case, or in cases of doubt, to
    • The Minister of Public Services and Procurement Canada
      Government of Canada Pension Centre – Mail Facility
      150 Dion Boulevard
      P.O. Box 8000
      Matane, Quebec G4W 4T6.

(2) The application and statement of arrears may be sent by mail, registered mail or any means of electronic communication that is agreed to by the Minister.

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

  • (i) a duly completed application for diversion of the recipient’s pension benefit has been made on behalf of named persons, domiciled and habitually resident at the time of the application in a stated province, territory or foreign country or place,

(2) Subparagraph 7(a)(iii) of the Regulations is replaced by the following:

  • (iii) a diversion of a stated amount or stated portion of the net pension benefit will be made for the benefit of the applicant no later than a stated date, and

(3) Paragraph 7(b) of the Regulations is replaced by the following:

  • (b) be accompanied by a copy of the financial support order on which the application is based and the statement of arrears of maintenance, alimony or support, if any; and

(4) The portion of paragraph 7(c) of the French version of the Regulations before subparagraph (i) is replaced by the following:

  • c) est transmis de la façon suivante :

(5) Subparagraph 7(c)(i) of the Regulations is replaced by the following:

  • (i) if the recipient’s latest known address is in Canada, by mail, registered mail with an acknowledgement of receipt or any means of electronic communication, and

21 Section 8 of the French version of the Regulations is replaced by the following:

8 Lorsque la prestation de pension d’un prestataire est constituée du paiement d’une somme globale et d’une série de versements périodiques et que le paiement de la somme globale doit être effectué avant les versements périodiques, le montant à distraire de la prestation nette de pension se calcule en conformité avec les dispositions pertinentes de la Loi, comme si la prestation de pension ne comportait qu’un seul type de paiement ou de versement.

22 (1) The portion of section 9 of the French version of the Regulations before paragraph (b) is replaced by the following:

9 Lorsque la prestation de pension d’un prestataire est constituée du paiement d’une somme globale et d’une série de versements périodiques et que le paiement de la somme globale doit être effectué en même temps que l’un des versements périodiques, les règles ci-après s’appliquent au calcul du montant à distraire de la prestation nette de pension du prestataire :

  • a) dans le cas où l’ordonnance de soutien financier pertinente prévoit seulement le paiement d’une somme globale, le montant spécifié dans l’ordonnance est d’abord imputé à la fraction de la prestation nette de pension qui consiste en un paiement d’une somme globale, conformément à l’article 36 de la Loi, comme si la prestation de pension ne comportait qu’un paiement d’une somme globale, et toute partie de ce montant qui reste impayée est considérée comme un nouveau paiement d’une somme globale à effectuer conformément à l’article 37 de la Loi, comme si la prestation de pension ne comportait que des versements périodiques;

(2) Paragraph 9(c) of the French version of the Regulations is replaced by the following:

  • c) dans le cas où l’ordonnance de soutien financier pertinente prévoit à la fois le paiement d’une somme globale et des versements périodiques, la somme globale est imputée à la fraction de la prestation nette de pension qui consiste en un paiement d’une somme globale, conformément à l’article 36 de la Loi, comme si la prestation de pension ne comportait qu’un paiement d’une somme globale, et les versements périodiques sont imputés à la fraction de la prestation nette de pension qui consiste en des versements périodiques, conformément à l’article 36 de la Loi, comme si la prestation de pension ne comportait que des versements périodiques.

23 The Regulations are amended by adding the following after section 9.1:

10 The notification referred to in paragraph 39(1)(b) of the Act may be sent by mail, registered mail or any means of electronic communication.

10.1 The copy of a varied financial support order referred to in subsection 39(5) of the Act shall be a certified copy unless it is submitted by a provincial enforcement service.

24 (1) The portion of subsection 11(1) of the French version of the Regulations before paragraph (a) is replaced by the following:

11 (1) Une demande visant la modification de la somme distraite peut être présentée en vertu du paragraphe 41(1) de la Loi si, selon le cas :

(2) Paragraphs 11(1)(a) and (b) of the Regulations are replaced by the following:

  • (a) the financial support order or the statement of arrears of maintenance, alimony or support on which the diversion is based has been varied or replaced by another financial support order or statement of arrears, as the case may be, that would result in a change in the amount to be diverted as calculated in accordance with the Act and these Regulations;
  • (a.1) a statement of arrears of maintenance, alimony or support has been submitted that would result in a change in the amount to be diverted as calculated in accordance with the Act and these Regulations;
  • (b) there has been a change in the applicant’s or recipient’s habitual residence and that change would result in a change in the amount to be diverted as calculated in accordance with the Act and these Regulations;

(3) Paragraph 11(1)(d) of the French version of the Regulations is replaced by the following:

  • d) l’une des conditions de paiement précisées dans l’ordonnance de soutien financier sur laquelle la distraction est fondée est modifiée, ce qui entraîne une modification de la somme devant être payée au titre de l’ordonnance;

(4) Paragraph 11(1)(e) of the Regulations is replaced by the following:

  • (e) a written request for a modification in the amount being diverted has been made by and signed by the applicant or the person or provincial enforcement service to whom diversion payments are being made for the benefit of the applicant.

(5) The portion of subsection 11(2) of the French version of the Regulations before paragraph (c) is replaced by the following:

(2) Une demande visant la cessation d’une distraction peut être présentée en vertu du paragraphe 41(1) de la Loi si, selon le cas :

  • a) l’une des conditions de paiement précisées dans l’ordonnance de soutien financier sur laquelle la distraction est fondée est modifiée, ce qui a pour effet de mettre fin à l’ordonnance;
  • b) l’ordonnance cesse d’avoir effet, est rescindée ou est annulée par suite d’une autre ordonnance ou d’un jugement rendu par un tribunal;

(6) Paragraph 11(2)(c) of the Regulations is replaced by the following:

  • (c) a written request to terminate the diversion has been made by and signed by the applicant or the person or provincial enforcement service to whom diversion payments are being made for the benefit of the applicant.

(7) The portion of subsection 11(3) of the Regulations before paragraph (a) is replaced by the following:

(3) An application referred to in subsection (1) or (2) shall be signed by or on behalf of the applicant or recipient and shall contain

(8) Paragraph 11(3)(a) of the French version of the Regulations is replaced by the following:

  • a) une demande écrite visant la modification de la somme distraite ou la cessation de la distraction;

(9) The portion of subsection 11(3) of the English version of the Regulations after paragraph (d) is repealed.

25 (1) Paragraph 12(a) of the French version of the Regulations is replaced by the following:

  • a) tout arriéré d’impôt sur le revenu, pour lequel une retenue est exigée en vertu de l’article 224.1 de la Loi de l’impôt sur le revenu, et tout montant qui doit être retenu à titre d’impôt sur le revenu relativement à un prestataire domicilié à l’étranger ou au paiement d’une somme globale;

(2) Paragraph 12(b) of the Regulations is replaced by the following:

  • (b) any amount deducted from the recipient’s pension benefit for instalments being paid in respect of elective service and deficiencies in pension contributions for current or elective service;

26 Sections 14 to 16 of the Regulations are replaced by the following:

14 An application under section 35.3 of the Act shall be made in the form set out in Schedule II and be accompanied by a copy of the financial support order, which shall be a certified copy unless the application is made by a provincial enforcement service.

15 If a person or provincial enforcement service who makes an application referred to in section 35.3 of the Act is unable to provide the plan member’s date of birth but provides other information sufficient to enable the Minister to identify the plan member within a reasonable time, the requirement that the application contain the plan member’s date of birth shall be waived.

16 An application referred to in section 35.3 of the Act shall be sent to

  • The Minister of Public Services and Procurement Canada
    Government of Canada Pension Centre – Mail Facility
    150 Dion Boulevard
    P.O. Box 8000
    Matane, Quebec G4W 4T6.

27 (1) The portion of section 17 of the Regulations before paragraph (b) is replaced by the following:

17 If an application is made under section 35.3 of the Act, the Minister shall provide the following information to the person or provincial enforcement service making the application:

  • (a) the date on which the plan member ceased to be employed in the public service, ceased to be required to make contributions under the Canadian Forces Superannuation Act or ceased to be a participant under subsection 5(1) of the Reserve Force Pension Plan Regulations as well as the period of pensionable service to the credit of the plan member;

(2) Paragraph 17(c) of the Regulations is replaced by the following:

  • (c) whether the plan member is, at the time of the application, eligible to exercise an option for a benefit under the Public Service Superannuation Act, the Canadian Forces Superannuation Act or the Reserve Force Pension Plan Regulations;

28 Section 18 of the Regulations is replaced by the following:

18 If an application referred to in section 35.3 of the Act is received and the person named as a plan member in the application has not yet exercised an option under any of sections 12 to 13.001 of the Public Service Superannuation Act, section 18 of the Canadian Forces Superannuation Act or section 45 of the Reserve Force Pension Plan Regulations, the application shall be retained by the Minister for a period of 12 months and the Minister shall inform the person or provincial enforcement service that made the application of any option exercised by the plan member during that 12-month period.

29 Items 1 to 3 of Schedule I to the Regulations are replaced by the following:

1 The Public Service Management Insurance Plan established under the Financial Administration Act.

2 A Royal Canadian Mounted Police group life insurance plan.

30 (1) Items 10 to 12 of the form of Schedule II to the Regulations are replaced by the following:

10

Is the applicant the person named in the financial support order as being entitled to support?

Est-ce que le requérant est la personne nommée dans l’ordonnance de soutien financier comme ayant droit aux aliments?

☐ Yes
Oui

☐ No
Non

If yes, go to item 13.
Si oui, passez à l’article 13.

If no, complete items 11 and 12.
Si non, passez aux articles 11 et 12.

11

Relationship to the person named in the financial support order as being entitled to support

Lien avec la personne nommée dans l’ordonnance de soutien financier comme ayant droit aux aliments

12

Person named in the financial support order as being entitled to support (given name, surname), if different from item 9

Personne nommée dans l’ordonnance de soutien financier comme ayant droit aux aliments (prénom, nom de famille) si différente de l’article 9

(2) Part 4 of the form of Schedule II to the Regulations is amended by replacing “Signature of Applicant / Signature du requérant” with “Signature”.

(3) The portion of Part 4 of the form of Schedule II to the Regulations after the signature and the date is replaced by the following:

Send the duly completed application to
Transmettez la demande dûment remplie au :

Minister of Public Services and Procurement Canada / Ministre des Services publics et de l’Approvisionnement Canada

Government of Canada Pension Centre – Mail Facility / Centre des pensions du gouvernement du Canada — Service du courrier

150 Dion Boulevard / 150, boulevard Dion

P.O. Box 8000 / C.P. 8000

Matane, Quebec / Matane (Québec)

G4W 4T6

Coming into Force

31 These Regulations come into force on the day on which subsection 106(2) of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, chapter 16 of the Statutes of Canada, 2019, comes into force, but if these Regulations are registered after that day, they come into force on the day on which they are registered.