Part 6 of the FLA requires Forms to be used for dividing pension benefits. The forms are set out in the Division of Pensions Regulation [See Appendix B of the Q&A for the Forms]
Form P1, “Claim and Request for Information and Notice” notifies the plan administrator that the spouse has a potential interest in the member’s benefits. Once the administrator receives the notice, the administrator is under an obligation (a) to notify the member, (b) to provide the spouse with requested information about the benefits, [Reg., s 10] and (c) to give the spouse advance notice before it acts in connection with the benefits (as a result of a direction received from the member, for example, or because of an event, such as the death of the member). [Reg., s 9]
Form P2, “Request for Designation as Limited Member” is used after the spouse’s interest in the benefits has been recognized by agreement or court order. The Form directs the plan administrator to register the spouse as a limited member. It is used in one of the following cases: (a) the pension has commenced, or the member is receiving an annuity; (b) the benefits are determined by a benefit formula provision and the pension has not yet commenced; (c) the benefits are in a supplemental pension plan or a plan for specified individuals; (d) the spouse is entitled to a share of disability benefits paid under the pension plan; or (e) the benefits are in a defined contribution account and the administrator consents to administer the spouse’s share in the plan. Form P2 is used basically in any case where the former spouse must wait to receive a share, or the share will be paid to the former spouse by the administrator over a period of time. [See Chapter 2]
Form P3, “Request for Transfer from Defined Contribution Account” is used if the member still has benefits in a defined contribution account. After the spouse’s interest in the benefits has been recognized by an agreement or court order, the Form is used to direct the plan administrator to transfer the spouse’s share (to, for example, a LIRA or LIF, or another pension plan, or to be used to purchase an annuity: PBSA, s 88). (If the administrator consents to administer the spouse’s share in the plan, then a Form P2 would be required for the spouse to become a limited member of the plan.) [See Chapter 3]
Form P4, “Request by Limited Member for Transfer or Separate Pension” is used for dividing benefits determined by a benefit formula provision before pension commencement. After the former spouse is registered as a limited member, this Form is used by the spouse to select how the share will be received. A limited member may choose either a lump sum transfer (if the member also has this option), or a separate pension. These options are available at any time after the member reaches an age at which the member could elect to have the pension commenced.
Form P5, “Waiver of Survivor Benefits after Pension Commencement” has been repealed.
Form P6, “Administrator/Annuity Issuer Response” is used by the administrator of the benefits to give notice to the member and former spouse as required under the Act.
Form P7, “Withdrawal of Notice/Waiver of Claim” is used by a former spouse to advise the administrator that the former spouse is no longer claiming an interest in the benefits, and to withdraw documents already filed.
Form P8, “Change of Information” can be used by a former spouse to keep the administrator advised of any changes in personal information (although if this information is provided by some other means, such as a letter or a change of address card, that is equally effective).
Form P9, “Agreement to Have Benefits Divided Under Part 6”. If the former spouse and member are in agreement about dividing the benefits and the dates to be used for that purpose, they can use Form P9 to record that agreement.
Form P10, “Notice of Assignment of Survivor Benefits by Agreement or Order” is used by a former spouse to advise the administrator that they have entered into an agreement or have been ordered to pay to another person some or all of the survivor benefits to which they are entitled.
| The Form is effective from the date of receipt. If, for example, the pension has commenced, and the former spouse has filed all of the documents required to become a limited member, the former spouse is entitled to a share of the payment made 30 days after the date of receipt. [Reg., s 15(a)] The time given the administrator to advise parties that Forms are incomplete (also 30 days, see para 13.2) is a limitation period. If the administrator doesn’t act within that time, either the spouse or the member can get a court order compelling the administrator to act. But the 30-day period does not act as a postponement of the effective date for the Form if it is complete. | |
| 13.8 Proving spouse is entitled | Form P1 says the spouse is claiming an interest based on FLA, s 81. What steps does the administrator have to take to confirm that the person filing the form is a “spouse”, that the parties have separated and that the former spouse has a potential claim under s 81? |
| The Form P1 is sufficient in itself. Provided that the information confirms that the parties were married, or that they have been cohabiting for at least 2 years in a marriage-like relationship, and are, therefore “spouses” within the meaning of the FLA, there is no other obligation on the plan administrator to make further inquiries about the status of the parties’ relationship. See also paras 12.9, 13.22 and 13.23. The member is protected from invalid claims by the obligation on the plan administrator to give the member notice that Form P1 was received. [Reg., s 7(1)] The administrator can require a person to provide evidence about a claim. [FLA, s 135(3)] In most cases, the administrator will have information on file confirming whether the member has a spouse and the identity of the spouse. If a request is made by someone else, then it would be reasonable for the administrator to take additional steps to confirm the facts. Nothing prevents the administrator from adopting procedures to verify spousal status. Under the FRA, many administrators required a party requesting information to provide a copy of the marriage certificate. For unmarried spouses, it may be reasonable to request confirmation of the parties’ relationship in the form of a sworn affidavit. However, in practice, an affidavit is unlikely to provide any more assurance than a signed and witnessed statement (which is required under Form P1 in the first place). See para 13.17. |
| 13.14 Late filing of Forms | What happens if the Forms are not submitted in a timely fashion? |
| There is no time limit under the legislation for submitting the Forms. Problems may arise if a required Form is delivered after something has happened (for example, the member has died, the limited member has died, the member is eligible for pension commencement or the member’s pension has commenced). A former spouse may find that payments due the former spouse have been made to the member or another party. The parties’ substantive rights are determined by the agreement or court order dividing the benefits. Delivering Forms P2, P3 or P4 with an agreement or court order dividing the benefits is an administrative requirement that does not subtract from the parties’ substantive rights but is a formality for involving the administrator in the pension division arrangements (see, for example, Martens v Martens, 2009 BCSC 1477). See para 13.24. If payments of a spouse’s share are made to a third party because of late filing, the spouse will have a claim against the recipient of the payments, but not against the plan administrator. The administrator’s obligations arise when it receives the required documents. [FLA, s 137] (Although an administrator that receives notice of an order or agreement without the correct Forms will sometimes be placed in a position where notice to the former spouse will be required: see para 13.15.) | |
| 13.15 If an agreed beneficiary designation is not made | The member and the spouse agreed, orally, that spouse1 would be beneficiary of the pension benefits. But the member died before pension commencement without making that beneficiary designation. When the member died, the member was in a marriage-like relationship with spouse2. |
| So far as the plan is concerned, the dispute does not concern it. If spouse2 qualifies as a spouse, the survivor benefit is paid to spouse2. Spouse1’s rights would affect the plan only if the appropriate Form, together with a written agreement or court order, is received (although notice obligations may arise if there is an incomplete application: see para 13.19). Spouse1 may have rights against spouse2, and may be able to assert priority over spouse2, but in the example cited above, that would require spouse1 obtaining a court order to do so. See para 11.4. |
| If there is an order or agreement dividing the benefits, this should be delivered to the administrator promptly. In the absence of a restraining order, a Form P1 or delivery of an order or agreement dividing the benefits made before the member’s death, the administrator has no obligation to take any steps to protect the interests of the former spouse. [Chaisson v Chaisson, 1997 CanLII 24485, 33 RFL (4th) 205 (Ont Gen Div)] | |
| 13.16 Orders made before FLA comes into force | What should an administrator do if it receives an order dividing the benefits that was made before Part 6 of the FLA came into force? |
| [See Chapter 14] | |
| 13.17 Revising the Forms | It would help us to add another box to Form P6 that deals with advising a former spouse when the member changes a beneficiary designation. The Form currently lists two options: “you have ceased to be the beneficiary” and “you have become the beneficiary”. There will be cases where the spouse is not the beneficiary, and the changed designation means that “another person has become the beneficiary”. Can we add that box to the Form? |
| Changes like this would be acceptable. Deviations from prescribed Forms that are not deceptive do not invalidate a form: see paras 13.9 and 13.27. It would be prudent, however, to indicate on the Form any changes that are made. [See Chapter 14] | |
| 13.18 Order not served on plan until after member retired | The relationship of the member and spouse1 ended 5 years ago. Spouse1 obtained a court order for a share of the benefits but never delivered it to the administrator. The member’s pension commenced 2 years ago, and the member took a joint and survivor pension with spouse2. What is spouse1 entitled to? |
| Spouse1 is entitled to a proportionate share of the periodic payments made under the member’s pension during the member’s lifetime. There is no obligation on the administrator to commute spouse1’s interest to establish separate pension entitlement now, or when the member dies. [See para 5.8] |
| 13.19 Form P1 requested but not filed | The former spouse requested a Form P1, which we sent out. It was never returned to us. The employee has now quit and directed that pension entitlement be transferred from the plan. What are the plan administrator’s obligations? Are we required to alert the former spouse? |
| The PBSA requires the permission of the member’s spouse in many circumstances, including when benefits are transferred from a plan. If the plan administrator is satisfied that the member is not in a relationship with someone who qualifies as a spouse under the PBSA, this scenario does not raise issues that place any obligations on the plan administrator under the FLA. In the absence of statutory authorization, the administrator is under a fiduciary obligation to the member not to disclose personal information to third parties, including the member’s spouse. Part 6 of the FLA changes that, but only once you have the Form P1. The only other circumstance in which an administrator is required to give a spouse notice is where there has been an incomplete application (such as where a former spouse files with the plan administrator the agreement or court order, even if no Forms are filed at all, or the filed Forms are defective.) [FLA, s 143(1)] | |
| 13.20 Disclosing information about benefits transferred from the plan | The employee quit and directed that pension entitlement be transferred from the plan, which was done. This took place a year ago. The former spouse has now filed a Form P1. Are we under an obligation to disclose what was transferred and to where? |
| Yes. The administrator’s obligation to provide requested information includes information about benefits that were transferred from the plan after the Form P1 is filed with the plan, or within 2 years before it is filed. [Reg., s 10(1)(h)] See para 15.21. | |
| 13.21 Form P1 and old orders and agreements | The member’s former spouse has an order dividing the pension benefits that was made in 1992. The spouse has now sent in a Form P1 and requested information about the pension benefits. Are we obligated to provide that information? |
| Yes, the former spouse still qualifies as a “spouse” (under the FLA, “spouse” includes a “former spouse”: FLA, s 3(2)). |
| A spouse claiming an interest in benefits is entitled to this information after sending in a Form P1. [FLA, s 133(1); Reg., s 10] FLA, s 133(1) refers to a spouse claiming an interest in general, which would include an interest arising under an order made before Part 6 came into force. (Form P1 refers to a claim under FLA, s 81, but that was included on the Form to remind spouses that there had to be some legal basis to the claim, not to restrict the right to receive information that is conferred under s 133.) | |
| 13.22 Limitation period—spouse in marriage-like relationship requests info | We have received a Form P1 from the member’s common law spouse together with a request for information. The dates on the form show that the parties separated more than 2 years ago. Can we provide the information? |
| Yes, if the information on the Form P1 states that the parties have been cohabiting in a marriage-like relationship for at least 2 years (which is the requirement under the FLA for non-married parties to qualify as “spouses” entitled to a share of family property when a relationship ends). [FLA, ss 1, definition of “spouse”, and 3] An unmarried spouse has 2 years from the date the parties separated to bring a claim under the FLA. [FLA, s 198(2)(b)] After 2 years, the unmarried spouse ceases to be a “spouse” within the meaning of the FLA for the purposes of claiming entitlement under that Act. There are provisions that suspend the running of time where the parties are engaged in “family dispute resolution” with a “family dispute resolution professional”. [FLA, s 198(5)] It’s possible that an application to vary an order can be made even after the 2-year limitation period. Time starts to run after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application. [FLA, s 198(3)] “Spouse” includes a “former spouse”. [FLA, s 3(2)] It is not the administrator’s responsibility to determine in advance whether or not the spouse’s claim under the FLA will be successful. Even if an unmarried spouse has been separated from the member for more than 2 years, the unmarried spouse is entitled to file a Form P1 and receive requested information. If the FLA is closed to the former spouse, the former spouse may still be able to establish entitlement to a share of the pension benefits through a claim based on unjust enrichment. See para 12.9. |
| If the member is opposed to the former spouse receiving information about the benefits, the member would be required to obtain a court order prohibiting its release. The administrator’s obligation to provide the member with notice (using Form P6) means that the member can take appropriate steps where the application is made by someone who has no entitlement to information. See, however, para 13.26. | |
| 13.23 Limitation period—Divorced spouse requests info | We have received a Form P1 from the member’s former spouse. The member says they divorced a few years ago. Can we still provide the former spouse with information? |
| Yes. A spouse claiming an interest in benefits is entitled to this information after sending in a Form P1. [FLA, s 133(1); Reg., s 10] A married spouse has 2 years from the date of an order for divorce or nullity to bring a claim under the FLA. [FLA, s 198(2)(a); see para 12.9] However, under the FLA, “spouse” includes a “former spouse”. [FLA, s 3(2)] So, even if the parties have been divorced for more than 2 years, the former spouse is entitled to file a Form P1 and receive requested information. (If the FLA is closed to the former spouse, the former spouse may still be able to establish entitlement to a share of the pension benefits through a claim based on unjust enrichment.) | |
| 13.24 Order/ agreement silent about the pension | We have a file where the spouse sent in a Form P2 with a Divorce Order attached to it, but nothing that deals with the pension benefits. On another file, the former spouse of a member has claimed an interest in the member’s pension benefits and sent in a Form P2. Their relationship ended years ago, and the agreement dividing their property did not mention the pension benefits. Are either of these spouses entitled to become limited members and request pension division? |
No. A plan cannot register a spouse or former spouse as a limited member unless there is an agreement or court order dividing the benefits. [FLA, s 134]
An agreement or court order that is silent on that point is deemed to allocate the entire pension to the member. [FLA, s 111(2); Webster v Webster, 2014 BCSC 730 at paras 18-30] See paras 1.6, 6.15, 9.1 and 11.17 for the general rule.
Even if FLA, s 111(2) applies, that doesn’t mean that the former spouse is foreclosed from establishing entitlement to a share of the benefits, but that is not a concern of the administrator. FLA, s 111(2) means that, for the administrator’s purposes, an agreement or order that is silent about pension division is not sufficient to require the administrator to take any action with respect to dividing the pension benefits.
It is quite possible that the spouse has rights, or may be able to establish rights, to the pension benefits, and provide the administrator with the required information and documents.
For example, rights in the benefits may have previously vested in the former spouse that are not affected by the later agreement or court order (as in Mann v Mann, 2009 BCCA 181).
Also, the FLA expressly provides that this deeming rule does not affect the court’s jurisdiction under Part 5 to review an agreement or court order. [FLA, s 111(3)] A similar position applies with respect to disability benefits. [FLA, s 122(5)]
An agreement may be reviewed and replaced with an order under the FLA where, for example:
- it is significantly unfair; [FLA, s 93(5)]
- a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; [FLA, s 93(3)(a)]
- a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress; [FLA, s 93(3)(b)]
- a spouse did not understand the nature or consequences of the agreement; [FLA, s 93(3)(c)] or
| opposed to arguing that parties who have cohabited for several years do not qualify as unmarried spouses under the FLA), clearly this raises special considerations. If the member verifies the member’s position in writing, advise the spouse and give the spouse an opportunity to respond. Depending on the information provided, it may be necessary to adopt the position that no steps can be taken without a court order. If either party has caused unnecessary legal proceedings to be pursued, this can be addressed through an order for costs. | |
| 13.27 Correcting typo on Forms | It looks like there are typos in Form P9 as published in the Division of Pensions Regulation. The paragraph numbering is not in sequence. Can we correct that on the Forms we are providing the parties? |
| Yes, you can correct the paragraph numbering. Section 28 of the Interpretation Act says that deviations from a form that do not affect its substance, or that are not calculated to deceive, do not invalidate the form used. See paras 13.9 and 13.17. Apparently, even an agreement can constitute a prescribed waiver if it is sufficiently close to the prescribed waiver. [Smith v Casco, 2011 ONCA 306] | |
| 13.28 Using Form P9 | Form P9 contains the advice: “Don’t file this form if you already have a written agreement, or an order, dividing the benefits”. There are cases where it might be convenient for the parties to use Form P9 when they have an order or agreement made before pension division legislation was enacted in B.C. on July 1, 1995. Would they be able to use Form P9? |
| Yes. The caution in Form P9 is to make sure that it is not used by parties who already have an agreement or order that is enforceable under Part 6 of the FLA (to prevent the plan administrator from being faced with two inconsistent pension division agreements, for example). But where the parties have an old order or agreement that cannot be brought within the operation of Part 6 of the FLA without a further agreement, there is no reason why they could not use Form P9 for this purpose. | |
| 13.29 Information request about former spouse and privacy rights | A member has asked us about what elections the former spouse made with her share of the benefits. Do we have to disclose that information? |
Not only are you not required to disclose that information, the former spouse’s rights of privacy mean that you must not provide personal information to the member without the former spouse’s consent.
The member would be entitled to confirmation about how you calculated the former spouse’s share. But after that, no third party, including the member whose benefits were divided, is entitled to information about whether the former spouse took a separate pension, or transferred the benefits from the plan and, if transferred, to where. Personal information is protected. [Personal Information Protection Act, SBC 2003, c 63]
Neither Part 6, nor the Division of Pensions Regulation, addresses privacy issues dealing with the former spouse’s separate entitlement. (There are rules about protecting the member’s privacy with respect to personal information set out in FLA, s 133 and Reg., ss 10 and 13. This is because Part 6 gives to a former spouse extraordinary rights of disclosure, so the balance between disclosure and the protection of personal information has to be carefully demarcated.)
Outside family law disputes, an administrator cannot disclose any private information about a member to a third person, including other plan members, under privacy laws and also fiduciary obligations imposed on a plan administrator. There was no need for family property legislation to address privacy issues affecting the former spouse in pension division matters because once the former spouse’s share is carved off from the member’s pension (by a lump transfer, or a separate pension), the former spouse is in the same position as any other person about whom the plan has private information.
There are tools available under the Supreme Court Family Rules (see Part 5, Financial Disclosure) to compel disclosure, if there is pending litigation. If the former spouse is making a claim for support, for example, the plan member should be entitled to information about the former spouse’s assets that are available to produce income. But there is a formal procedure for obtaining disclosure in those circumstances.
Providing information about how the former spouse’s share was calculated, on the other hand, would not be considered personal information and it is information to which the member is entitled (to determine whether the pension division was carried out correctly). If the member requests this information, the administrator would be required to advise concerning the proportionate share allocated to the former spouse, and how this was calculated.
With respect to privacy issues under the FLA, see also paras 13.19, 15.22, 15.50 and 15.51