Proposed guidance on administration of pension benefits upon marriage breakdown summary of commentary

General

FSRA thanks and appreciates the participation and input submitted by these organizations.  All submissions assisted us in improving the Guidance and promoting a clearer understanding of FSRA’s approach to the administration of pension benefits on marriage breakdown under the PBA.

Title and Index

Morneau Shepell, CLHIA, Manion Wilkens

FSRA appreciates the suggestions regarding the title and index sections of the Guidance as well as the suggestion to add a definition and acronyms section.

We note that FSRA prefers to use the term “marriage breakdown” to refer to this subject matter, reflecting the emphasis of the Family Law Act on the division of property between married spouses.

1. Purpose

WTW, OPTrust,
CAAT

FSRA acknowledges the comments that any changes to the Guidance should be reflected in FSRA’s publication titled “Pensions and marriage breakdown – a guide for members and their spouses” (the “Members and Spouses Guide”).

We will ensure that any substantive changes to this Guidance as a result of this consultation are also reflected in that publication.

2. Rationale and Background

WTW, OPTrust,
CAAT

FSRA appreciates the views expressed and suggestions regarding the status of previous FSCO web material and policies as well as the request for a transition period to the use of new Family Law Forms.

We confirm that previous FSCO material on the administration of pension benefits on marriage breakdown will continue to be available on the FSRA website with a status of “inactive.”

Additionally, FSRA will provide an appropriate transition period during which either version of the Forms may be used by plan administrators.

Paragraph 3.2

WTW

FSRA recognizes the helpful and informative comments, queries and suggestions provided with respect to the scope section of the Guidance.

We have carefully reviewed all comments and addressed them where possible. A number of modifications have been made to respond to the issues raised – particularly those identifying opportunities for increased clarity in this subject matter.

For example, paragraph 3.2 was modified to clarify that administrators must only comply with court orders that comply with the PBA. A clarifying example was also added in paragraph 3.4.

The topics under paragraphs 3.5 and 3.6 were also reviewed in full and a number of modifications were made to provide increased clarity and precision.

More generally, FSRA appreciates that commentators are seeking answers on different and challenging fact scenarios that engage jurisdictional issues. Unfortunately, FSRA cannot provide answers on all fact scenarios that may arise. Section 3 is intended to provide a framework for analyzing these different fact scenarios and to support professionals and plan administrators in addressing different jurisdictional issues.

Finally, we confirm that the description of the transition rules in paragraph 3.4 does reflect FSRA’s view of the legislative framework.

Paragraph 3.4

WTW, ACPM

3.5. Out-of-Province Separations and Court Orders    

Manion Wilkens, OPTrust, ACPM, OPTrust, Eckler

Paragraph 3.5.2

WTW

Paragraph 3.5.4

Manion Wilkens, ACPM, WTW, Segal, MEBCO

3.6 Pension Benefits That Are Not Subject to the PBA

CIA

Paragraph 3.6.2

WTW, Morneau Shepell

Paragraph 3.6.2.1

WTW

Paragraph 3.6.2.2

WTW

4. Principles

OTPP, OPTrust, CAAT

FSRA recognizes and values the support for our principles-based approach in this area.

Paragraph 4.9

CAAT

5.4 Court orders, Arbitration or Domestic Contracts Contravening the PBA

Manion Wilkens

FSRA appreciates the comments on section 5.4 concerning settlement instruments that contravene the PBA.

We have modified the Guidance, Forms, and Members and Spouses Guide to address these comments where possible. For example, we have clarified the description of the 50% maximum rule and included directions in the Members and Spouses Guide checklist and relevant forms to state the plan name in the settlement instrument.

Paragraph 5.4.2

MEBCO, TEIBAS

Paragraph 5.4.2

TEIBAS

Paragraph 7.2.1.2.

OTPP, OPTrust, Morneau Shepell, CAAT

We understand the sector’s concern with paragraph 7.2.1.2 about the appropriate mortality table to be used based on the Family Law Valuation Date and have modified this section accordingly.

7.3 Application of CIA SOP Effective December 1, 2020

Segal

FSRA appreciates the comments on section 7.3 which concerns the application of the CIA SOP as amended effective December 1, 2020.

We have addressed these comments where possible. For example, we have modified paragraph 7.3.5.1 to refer to a “guarantee attached to a pension paid in Joint and Survivor Form” and included a clarifying example in the discussion of bridging benefits. Paragraph 7.3.3.1 has also been deleted and the remainder of the section renumbered accordingly.

We do note that neither the PBA nor Regulation 287/11 supports using a commuted value approach to calculate the Family Law Value (FLV) for active members.

Paragraph 7.3.3.1.

Morneau Shepell

Paragraph 7.3.4.1

Morneau Shepell

Paragraph 7.3.6

WTW

7.4.Calculation: Multi-Employer Pension Plans

MEBCO, Eckler

Segal, LPF

FSRA appreciates the feedback regarding section 7.4 which concerns the valuation of benefits under a Multi Employer Pension Plan that has been amended to reduce benefits.

We recognize that a number of comments have expressed a desire that amendments filed post Family Law Valuation Date (FLVD) be reflected in the preliminary value.

At present, the statutory framework does not support this. The valuation provisions under the PBA are based on the benefit entitlement of the member on the FLVD, without taking into account any post-FLVD changes.  Therefore, an amendment that occurs post-FLVD cannot be included in the preliminary value calculation. FSRA does not have discretion in this respect.

7.7 Change in Plan Membership after FLVD but before Application for a Statement of Family Law Value

Eckler, Actuarial Solutions, CAAT

TEIBAS

FSRA appreciates the comments and suggestions on section 7.7 which concerns the responsibility to value the benefits of a member who has experienced a change in plan membership after the FLVD but before they apply for a Statement of Family Law Value.

We have modified this section in a number of respects to address these comments where possible. For example, we have added headings to this section to further clarify which approach applies in different transfer scenarios and have also clarified that is the 50% equalization limit under the original plan as of the FLVD that applies to the payment from the successor plan. We have also added a footnote to clarify the treatment that applies where a member has terminated employment and transferred their benefit to a locked-in vehicle.

More generally, we recognize that there are differing views as to whether the original or successor plan should be responsible for performing the calculation. The Guidance continues to reflect FSRA’s view that, in most cases (subject to the exceptions listed), the original plan will be in the best position to perform the calculation.

We note that the original plan will not be required to perform the calculation where the administrator has been discharged by reason of section 42(11) of the PBA .

Paragraph 7.7.2

OTPP, ACPM

Paragraph 7.7.5

OPTrust

Paragraph 7.7.5

WTW

Paragraph 7.7.8

Morneau Shepell

7.8 Purchases Pension Credit Vs. Transfers

CIA

FSRA appreciates the comments on section 7.8 concerning the valuation of purchased and transferred pension credit.

We have modified this section to further clarify how purchased service is incorporated into the formula in section 18 of Regulation 287/11 and have added a footnote to clarify that service purchased through amortized payments made outside of the spousal period should not be included in the FLV.

7.9 Annuities

Actuarial Solutions

FSRA recognizes the comment on section 7.9 concerning the responsibility to calculate the FLV when there is a buy-out annuity purchased but no corresponding statutory discharge.

In the case of buy-out annuities, it is the discharge provided under the PBA that relieves the administrator of the requirement to perform the valuation. Where a discharge is not provided under the PBA, the administrator retains the responsibility to provide a valuation where an application is made.

Paragraph 8.2.1

Morneau Shepell

FSRA appreciates the comments on section 8.2 and has modified the section to indicate that there are currently no regulations to support a spouse leaving their portion of the FLV in the pension plan.

Paragraph 8.2.2

WTW

8.3 Interest on Payments to the Spouse
 

Manion Wilkens

FSRA appreciates the comment on Section 8.3 and have modified this section to add a footnote clarifying that interest, where applicable, is paid from the member’s portion of the FLV.

8.4 Adjustment / Revaluation after Transfer or Pension Division
 

Eckler

FSRA is thankful for the feedback on section 8.4 which concerns adjustment or revaluation after a transfer or pension division.

We have modified this section to clarify that, while the regulations do not permit a plan administrator to apply an adjustment to an active member who has a defined benefit until such time as they terminate, FSRA recommends that plans provide an explanation that the pension may be reduced following the transfer and that plans may also provide an estimate of the reduced pension.

Paragraph 8.4.1

LPF, ACPM, TEIBAS

WTW

8.5 Change in Member Status from Active/Former to Retired Post FLVD

Actuarial Solutions

FSRA appreciates the commentary regarding section 8.5 which deals with a change in member status from active or former member to retired member post-FLVD. No modifications have been made to this section.

Paragraph 8.5.3

CIA

8.6 Re-employment

WTW

FSRA appreciates the comments and feedback regarding section 8.6. We have modified this section to clarify that it applies specifically to cases where a member is re-employed and the pension is suspended under the terms of the plan. Paragraph 8.6.1 notes that it is the member that may be personally responsible for any discrepancy in payments (depending on the terms of the underlying legal arrangements between the parties).

We note that there is nothing in the PBA that supports an independent stream of payments continuing to the spouse during the period of suspension.

Paragraph 8.6.1

OPTrust, LPF

8.7 Spouse Dies Before the Retired Member
 

Golden Actuarial

FSRA appreciates the comments on section 8.7 which concerns the Meloche decision. FSRA is currently reviewing the recently released Ontario Court of Appeal decision on this matter and will update the Guidance when that review is complete.

Paragraph 8.7.1

TEIBAS

Paragraph 8.7.2

WTW

Paragraph 8.8.1

WTW

FSRA appreciates the comments on section 8.8. We have modified this section to remove reference to the spouse not receiving the full equalization payment.

Paragraph 9.1.1.

WTW

FSRA appreciates the comments on section 9 and have modified this section to replace the term “interest” with the term “entitlement.” We have also further clarified the conditions that must be satisfied before accepting a Form 8.

Paragraph 9.1.2

ACPM

General Comments

Eckler, Actuarial Solutions, LPF

A number of additional comments were received that reflect subject matter falling outside the scope of the Guidance. These comments often fell into two categories:

1) they raised issues or concerns which could only be addressed through specific legislative or regulatory change, or

2) they related to a specific fact pattern or situation that is not directly addressed by the Guidance.

With respect to the first category, we note that all comments received will be shared with the government for its consideration as to whether amendments to the relevant legislation or regulations to address the concern are appropriate.

With respect to the second category, we note that the Guidance is not intended to address every fact situation that can arise.

The fact situations that are addressed are intended to provide Guidance on specific issues that have been identified as high priority by the sector. At the same time where issues are not addressed FSRA is  hopeful that the Guidance will provide a framework for plan administrators and their advisors to analyze these issues in light of FSRA’s principles and approach.

FSRA will continue to assess the usefulness of this Guidance to the sector and may amend the Guidance to the extent gaps are identified.