The long awaited Family Law Matters Regulations supporting Bill 133, the Family Statute Law Amendment Act, 2009, have been released for comment by the Ontario Government. Bill 133, once in force, will radically alter the marriage breakdown pension division regime in Ontario. In addition to expediting the division process by moving to an immediate division system (currently spouses must wait until the member of the pension plan retires or terminates employment before the pension can be divided), Bill 133 and the Regulations provide for greater access to information for non-member spouses.
Under the current system, a spouse is not automatically entitled to information regarding a member’s pension. Plan administrators are required to protect a member’s personal information – including the quantum of his or her pension accruals. For the spouse to obtain information regarding the member’s pension, the member must consent in writing. Where that is not possible (e.g., the member is unwilling), often a court order is necessary. The only statutory right to information arises once a separation agreement or court order dividing the pension has been filed with the administrator, in which case the spouse is entitled to notice when the member is terminating and the same options as the member with respect to the transfer or payment of the pension.
Once Bill 133 is in force, either spouse will be permitted to apply to a plan administrator for a statement of the value of the member’s pension (for family law purposes). The statement will be required to be in the prescribed form and contain specified information:
- particulars identifying the pension plan;
- the name and birth date of each spouse;
- the employment and membership status of the member;
- the date of marriage or co-habitation;
- the date of separation;
- the value of the pension benefits determined for family law purposes; and
- any related financial information (e.g., whether the member has accumulated additional voluntary contributions).
The statement must also set out general information regarding the plan, including its funded status and whether there is a wind up or surplus related event that would impact the member’s entitlement. Administrators will be permitted to charge a small fee for the creation of these statements (no more than $500 if the plan provides defined benefits).
Ontario has lagged behind other jurisdictions with respect to spousal rights to access pension-related information. Bill 133 “equalizes” the playing field for spouses dealing with marriage breakdowns by ensuring that both spouses have easy access to the information required to understand and address the division of the pension in the family law case.
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