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Statutes of Newfoundland and Labrador 2004


CHAPTER P-29.1

AN ACT TO CREATE A PENSION PLAN FOR PROVINCIAL COURT JUDGES

(Assented to June 8, 2004)

Analysis

1. Short title

PART I
INTERPRETATION

2. Definitions

PART II
APPLICATION

3. Application to judges

4. Transfer of service

5. Contributions

6. Return of contributions

PART III
REGISTERED PLAN

7. Income Tax Act (Canada)

8. Retirement

9. Calculation of registered allowance

10. Indexing

11. Early retirement

12. Pre-retirement death

13. Registered survivor benefit

14. Termination

15. Deferred registered allowance

PART IV
SUPPLEMENTARY PLAN

16. Supplementary plan account

17. Registered plan reduction

18. Supplement on retirement

19. Calculation of supplementary allowance

20. Indexing

21. Supplement on early retirement

22. Pre-retirement death

23. Supplementary survivor benefit

24. Termination

25. Deferred supplementary allowance

PART V
GENERAL

26. Assignment of allowance

27. Payment to children

28. Marriage breakdown

29. Purchase of prior service

30. Directive of minister

31. Consequential amendments

32. Commencement

 

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Provincial Court Judges’ Pension Plan Act.

PART I
INTERPRETATION

Definitions

2. In this Act

(a) "commuted value" means commuted value as defined in the Pension Benefits Act, 1997;

(b) "judge" means a Provincial Court judge appointed under the Provincial Court Act, 1991;

(c) "judge's service" means a period of pensionable service accrued as a Provincial Court judge after April 1, 1992;

(d) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(e) "partner"

(i) in relation to a judge who has a spouse, means a person who is not the spouse who has cohabited continuously with the judge in a conjugal relationship for not less than 3 years, and

(ii) in relation to a judge who does not have a spouse, means a person who has cohabited continuously with the judge in a conjugal relationship for not less than 1 year,

and is cohabiting or has cohabited with the judge within the preceding year;

(f) "pensionable service" means any period of judge's service that may be used in calculating an allowance under this Act, and includes service credited under section 29;

(g) "pensioner" means a judge who is retired and receiving an allowance under this Act;

(h) "Plans" means the Registered Plan and the Supplementary Plan established in Parts III and IV;

(i) "principal beneficiary" means the spouse of a judge, or where the judge has a partner, the judge's partner;

(j) "registered allowance" means an allowance paid under Part III;

(k) "spouse" means a person who

(i) is married to the judge,

(ii) is married to the judge by a marriage that is voidable and has not been voided by a judgment of nullity, or

(iii) has gone through a form of marriage with the judge, in good faith, that is void and is cohabiting or has cohabited with the judge within the preceding year;

(l) "supplementary allowance" means an allowance paid under Part IV;

(m) "vested judge" means a judge who has served as a Provincial Court judge for at least 2 years after April 1, 1992;

(n) "year" means 12 months; and

(o) "YMPE" means the year’s maximum pensionable earnings as defined under the Canada Pension Plan.

PART II
APPLICATION

Application to judges

3. (1) This Act applies to judges appointed on or after April 1, 2002 and to a judge who elects on or before April 1, 2002 to join the Plans.

(2) An election to join the Plans is irrevocable.

Transfer of service

4. (1) Where a judge elects under subsection 3(1) to join the Plans, he or she may elect to transfer his or her judge’s service accrued under the Public Service Pensions Act, 1991 after April 1, 1992 and may be credited with that service under this Act upon paying the contributions determined by the minister.

(2) A judge may not transfer or be credited under this Act with pensionable service except under subsection (1) and section 29.

Contributions

5. (1) A judge shall contribute to the fund established under the Pensions Funding Act at a rate of 9% of his or her judge's salary.

(2) Contributions that exceed the maximum allowed under the Income Tax Act (Canada) shall be paid to the Supplementary Plan Account established under section 16.

(3) A judge who has accrued, and paid contributions for 20 years of judge’s service is not required to pay contributions under this section.

(4) The government of the province shall pay out of the Consolidated Revenue Fund and pay into the fund established under the Pensions Funding Act an amount equal to the contributions of each judge under this Act.

Return of contributions

6. A judge who has stopped serving as a judge and who has less than 2 years of judge’s service may elect to receive a refund of his or her contributions under this Act together with interest calculated in accordance with the rates prescribed under the Pension Benefits Act, 1997.

PART III
REGISTERED PLAN

Income Tax Act (Canada)

7. (1) This Part shall be administered in accordance with the Income Tax Act (Canada), and the Income Tax Act (Canada) shall take precedence over this Part in the event of a conflict.

(2) Contributions under this Part shall not exceed the amount of the annual deductible contributions to a registered plan permitted under the Income Tax Act (Canada).

(3) Contributions and other payments under this Part shall be deposited in the fund established under the Pensions Funding Act and all allowances and other monies payable under this Part shall be paid out of that fund.

Retirement

8. (1) A vested judge whose employment is terminated may, on application, receive a registered allowance if the judge

(a) has paid the contributions for service required under this Act; and

(b) has reached age 65.

(2) A registered allowance shall be paid periodically in equal amounts and shall stop at the end of the month in which the death of the judge occurs.

Calculation of registered allowance

9. (1) The annual amount of the registered allowance paid to a judge is the product of 2% of his or her annual salary on ceasing to be a judge, multiplied by the number of years of his or her judge's service to a maximum of 20.

(2) A registered allowance shall not exceed the maximum allowable benefit as determined under the Income Tax Act (Canada).

Indexing

10. (1) On October 1 the amount of a registered allowance or survivor benefit being paid to a person who has reached age 65 shall be adjusted by multiplying

(a) the annual amount of the registered allowance or survivor benefit;

by

(b) 60% of the ratio that the Consumer Price Index for the previous calendar year bears to the Consumer Price Index for the calendar year immediately before the previous calendar year,

but the amount of any increase shall not exceed 1.2% of the annual registered allowance or survivor benefit.

(2) The amount of a registered allowance or survivor benefit being paid to a person shall not decrease by reason only of an adjustment under subsection (1).

Early retirement

11. (1) A vested judge whose employment is terminated may, on application, receive a reduced registered allowance before age 65 if the judge

(a) has paid the contributions for service required under this Act; and

(b) has

(i) at least 20 years of judge’s service, and

(ii) reached age 55.

(2) The registered allowance payable to a judge who applies under this section shall be reduced by

(a) 7% for each year that the judge’s age when the allowance commences is less than 65 to a maximum reduction under this paragraph of 35%; and

(b) 4.5% for each year that the judge’s age when the allowance commences is less than 60.

Pre-retirement death

12. (1) If a judge dies before receiving a registered allowance, and a survivor benefit is payable under section 13, the surviving principal beneficiary may elect

(a) to receive the survivor benefit; or

(b) to receive in a lump sum

(i) the commuted value of the survivor benefit, or

(ii) the commuted value of the judge’s entitlement under this Part,

whichever is greater.

(2) If a judge dies before receiving a registered allowance and there is no survivor benefit payable under section 13, the commuted value of the entitlement of the judge under this Part, calculated as of the date of death, shall be paid to the estate of the judge.

Registered survivor benefit

13. (1) A principal beneficiary of

(a) a pensioner; or

(b) a vested judge who has paid the contributions for service required under this Act,

is entitled on the death of the pensioner or judge to a survivor benefit equal to 60% of the pensioner's or judge's entitlement.

(2) A judge's entitlement is the registered allowance he or she would have received had he or she reached age 65 on the date of death.

(3) The survivor benefit shall be paid to the surviving principal beneficiary for life and shall commence on the first day of the month following the month in which the pensioner or judge dies.

(4) Where a pensioner or judge referred to in subsection (1) dies leaving no surviving principal beneficiary, the survivor benefit shall be paid to or for the benefit of his or her surviving children while they are under age 18, or under age 25 while they are in full-time attendance at a recognized school or post-secondary institution.

(5) Where for any reason a survivor benefit ceases to be payable and no one remains to whom a benefit is payable, the amount by which the judge's contributions, together with interest to the date the benefit commenced at a rate prescribed by the Minister of Finance, exceed all benefits received from the registered plan shall be paid to the person whose benefit ceased or to that person's estate.

Termination

14. (1) A vested judge who

(a) has paid the contributions for service required under this Act; and

(b) is less than age 65,

may elect within 180 days after his or her termination

(c) a transfer of the commuted value of the entitlement of the judge under this Part, in accordance with paragraph 40(1)(a) of the Pension Benefits Act, 1997; or

(d) a deferred registered allowance.

(2) In default of an election under subsection (1) the judge is considered to have elected to receive a deferred registered allowance.

(3) A transfer under paragraph (1)(c) which is not to another pension plan or deferred life annuity shall, regardless of when the pensionable service was credited, be to a retirement arrangement approved for this purpose by the Superintendent of Pensions.

(4) The transfer under paragraph (1)(c) shall not be less than the contributions made by that judge with interest at the rate prescribed under the Pension Benefits Act, 1997.

(5) Where the transfer under paragraph (1)(c) would be greater than the maximum amount permitted under the Income Tax Act (Canada), the excess shall be paid to the judge.

(6) Where the annual registered allowance payable is less than 4% of the YMPE for the calendar year in which the judge’s employment terminated, the judge is entitled to receive a lump sum payment instead of the deferred registered allowance under section 15.

(7) Where the commuted value of a deferred registered allowance is less than 10% of the YMPE for the calendar year in which the judge’s employment terminated, the judge is entitled to receive a lump sum payment instead of the deferred registered allowance under section 16.

Deferred registered allowance

15. (1) A judge who elects, or is considered to have elected under section 14, to receive a deferred registered allowance may, on becoming eligible to receive a registered allowance under section 8 or 11, apply to receive that allowance.

(2) Where there is an increase in the amount of a registered allowance, that increase shall apply to the deferred registered allowance as if the person was a pensioner on the first of the month following his or her termination.

PART IV
SUPPLEMENTARY PLAN

Supplementary plan account

16. The Judges’ Supplementary Plan Account is established in the Consolidated Revenue Fund.

Registered plan reduction

17. (1) A judge’s supplementary allowance shall be reduced by the amount of the judge’s registered allowance.

(2) A survivor benefit paid under this Part shall be reduced by the amount of any survivor benefit paid under Part III.

(3) A benefit paid to a designated beneficiary under this Part shall be reduced by any benefit paid to that beneficiary under Part III.

(4) A return of contributions, commuted value or other lump sum payment in respect of an entitlement under this Part shall be reduced by the amount of a similar payment made under Part III.

Supplement on retirement

18. (1) A vested judge whose employment is terminated may, on application, receive a supplementary allowance if

(a) the judge has paid the contributions for service required under this Act; and

(b) has reached age 65.

(2) A supplementary allowance shall be paid periodically in equal amounts and shall stop at the end of the month in which the death of the judge occurs.

Calculation of supplementary allowance

19. The annual amount of the supplementary allowance paid to a judge is the product of 3.33% of his or her annual salary on ceasing to be a judge, multiplied by the number of years of his or her judge's service to a maximum of 20 years.

Indexing

20. (1) On October 1 the amount of a supplementary allowance or survivor benefit being paid to a person who has reached age 65 shall be adjusted by multiplying

(a) the annual amount of the supplementary allowance or survivor benefit;

by

(b) 60% of the ratio that the Consumer Price Index for the previous calendar year bears to the Consumer Price Index for the calendar year immediately before the previous calendar year,

but the amount of any increase shall not exceed 1.2% of the annual supplementary allowance or survivor benefit.

(2) The amount of a supplementary allowance or survivor benefit being paid to a person shall not decrease by reason only of an adjustment under subsection (1).

Supplement on early retirement

21. (1) A vested judge may, on application, receive a reduced supplementary allowance before age 65 if the judge

(a) has paid the contributions for service required under this Act; and

(b) has

(i) at least 20 years of judge’s service, and

(ii) reached age 55.

(2) The supplementary allowance payable to a judge who applies under this section shall be reduced by

(a) 7% for each year that the judge’s age when the allowance commences is less than 65 to a maximum reduction under this paragraph of 35%; and

(b) 4.5% for each year that the judge’s age when the allowance commences is less than 60.

Pre-retirement death

22. (1) If a judge dies before receiving a supplementary allowance and a survivor benefit is payable under section 23, a surviving principal beneficiary may elect

(a) to receive the survivor benefit; or

(b) to receive in a lump sum

(i) the commuted value of the survivor benefit, or

(ii) the commuted value of the judge’s entitlement,

whichever is greater.

(2) If a judge dies before receiving a supplementary allowance and there is no survivor benefit payable under section 23, the commuted value of the entitlement of the judge, calculated as of the date of death, shall be paid to the estate of the judge.

Supplementary survivor benefit

23. (1) A principal beneficiary of

(a) a pensioner; or

(b) a vested judge who has paid the contributions for service required under this Act,

is entitled on the death of the pensioner or judge to a survivor benefit equal to 60% of the pensioner's or judge's entitlement.

(2) A judge's entitlement is the registered allowance he or she would have received had he or she reached age 65 on the date of death.

(3) The survivor benefit shall be paid to the surviving principal beneficiary for life and shall commence on the first day of the month following the month in which the pensioner or judge dies.

(4) Where a pensioner or judge referred to in subsection (1) dies leaving no surviving principal beneficiary, the survivor benefit shall be paid to or for the benefit of his or her surviving children while they are under age 18, or under age 25 while they are in full-time attendance at a recognized school or post-secondary institution.

(5) Where for any reason a survivor benefit ceases to be payable and no one remains to whom a benefit is payable, the amount by which the judge's contributions, together with interest to the date the benefit commenced at a rate prescribed by the Minister of Finance, exceed all benefits received from the registered plan shall be paid to the person whose benefit ceased or to that person's estate.

Termination

24. (1) A vested judge who

(a) has paid the contributions for service required under this Act; and

(b) is less than age 65,

may elect within 180 days after his or her termination

(c) to receive in a lump sum the commuted value of the judge’s entitlement under this Part, or

(d) a deferred supplementary allowance.

(2) In default of an election under subsection (1) the judge is considered to have elected to receive a deferred supplementary allowance.

Deferred supplementary allowance

25. (1) A judge who elects, or is considered to have elected under section 24, to receive a deferred supplementary allowance may, on becoming eligible to receive a supplementary allowance under section 18, apply for and receive an allowance calculated in accordance with section 19.

(2) Where there is an increase in the amount of a supplementary allowance, that increase shall apply to the deferred supplementary allowance as if the recipient was a pensioner on the first of the month following his or her termination.

PART V
GENERAL

Assignment of allowance

26. An allowance paid under this Act shall not be assigned, anticipated, surrendered, charged or given as security except in accordance with the Pension Benefits Act, 1997.

Payment to children

27. An allowance or benefit payable under this Act, to a person under the age of 18 years or to a person who is financially dependent due to mental or physical incapacity, shall be paid to the guardian of the property of that person.

Marriage breakdown

28. (1) Where

(a) a court has made an order for the division of matrimonial property under the Family Law Act or a similar order has been made by a court outside the province; or

(b) a judge has entered into a separation agreement within the meaning of the Family Law Act to divide matrimonial property,

a right under this Act shall be divided in accordance with the court order or separation agreement and Part VI of the Pension Benefits Act, 1997 applies with the necessary changes.

(2) Calculations under this Act respecting maximum contributions and years of service shall be done as if there had been no division under this section.

Purchase of prior service

29. (1) Where a person who ceased to be a judge received a payment or transfer on termination and later becomes a judge, that person may be credited with the prior pensionable service that he or she may elect to purchase in accordance with the terms and conditions that may be prescribed by the Minister of Finance.

(2) Where a person who ceased to be a judge and did not receive a payment or transfer on termination later becomes a judge, that person shall be credited with all pensionable service that accrued immediately before termination.

(3) Notwithstanding subsection (1), a judge may only be credited under that subsection with service purchased with money transferred from a registered retirement savings plan, deferred profit sharing plan or a registered pension plan.

Directive of minister

30. The Minister of Finance may issue directives to give effect to the purpose of this Act.

Consequential amendments

31. (1) Section 3 of the Pensions Funding Act is amended by adding the following immediately after paragraph (b):

(b.1) the Provincial Court Judges’ Pension Plan Act;

(2) Section 3 of the Public Service Pensions Act, 1991 is amended by adding the following immediately after subsection (2):

(3) A Provincial Court judge is not eligible to be retired under paragraph 16(1)(b) of this Act unless he or she was retired on or before April 1, 2002.

Commencement

32. This Act is considered to have come into force on April 1, 2002.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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