Amounts to transfer

General rules

The administrator must transfer to the former spouse the amount provided for in the judgment or agreement, which can be either a proportion or a fixed amount, to which interest is added.

Former married or civilly united spouses

If the judgment, the agreement confirmed by judgment or the notarized agreement indicates that the pension plan is to be partitioned without specifying the amount to be transferred to the former spouse, half of the value accumulated during the marriage must be remitted to the former spouse, plus interest.

Former de facto spouses

The agreement cannot provide for the transfer of more than 50% of the total value of the benefits as at the end of the conjugal relationship, before interest.

Plan's degree of solvency

For all partitions carried out after 31 March 2018, the administrator must no longer take into account the plan's degree of solvency. The total amount due to the former spouse, including interest, is therefore remitted to him or her within the applicable time limit.

Interest

Interest must be added even if not provided for in the judgment or agreement. Interest accrues from the valuation date until the date of transfer to the former spouse.

Pension benefits

The interest rate to be applied to pension benefits is the rate in effect on the valuation date.

Where a pension is indexed, the rate applicable to the calculation of a nonindexed pension must be used.

Capital benefits

The interest rate to be applied to capital benefits is the same as the rate credited to the member contributions during the same period. Generally, this will be the rate of return on the pension fund or on the investments chosen by the member.

When the return is negative, a negative interest is also applied to the amount transferred to the former spouse.

Absence of instructions from the former spouse

If the former spouse fails to inform the administrator of his or her choice of transfer instrument, interest ceases to accrue once the time allotted for which the administrator has to carry out partition has expired. Interest will resume when the former spouse informs the administrator of his or her choice.

Possible actions of the administrator regarding a judgment

The plan administrator may have to intervene in the following situations, with or without the cooperation of the former spouses, as applicable.

A judgment that is subject to interpretation

Ideally, the former spouses should take steps to obtain a new, more precise judgment. If they do not, the administrator should obtain a written document signed by both they do former spouses expressing their shared interpretation of the judgment.

If the former spouses do not agree on the interpretation, the administrator should not take a position but rather wait for the former spouses to settle the problem.

A judgment considered not in conformity with the law

In most cases, a judgment is considered not in conformity with the Act because the 50% limit is not respected. Some judgments may also improperly order the administrator to transfer a pension amount to the former spouse.

The administrator should first notify the former spouses, so that they can obtain a new judgment or make other arrangements.

The administrator can also petition for a revocation of judgment (also called "opposition by third party"). The pertinence of such recourse depends on several factors, including the amount at issue and the effect of the judgment on the pension fund. The administrator is obliged to act in the best interests of all of the members and beneficiaries of the plan.

If the former spouses refuse to act (the administrator should always keep the documents in the file) and the administrator does not petition to have the judgment amended, the administrator must execute the entire judgment, even if it is considered not in conformity with the law. In no case can the administrator, on its own initiative, refuse to execute the judgment.

A judgment dating back several years (prescription)

In theory, the administrator must carry out an application for partition based on a judgment rendered.

However, if after having been notified of his or her former spouse's application for partition, the member objects to the application before a court of law, for example, on the grounds of prescription, the administrator may not act on the application for partition. It must wait for the judgment and then take appropriate action.

Legal references

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