Law:Defence Services Pension Continuation Act

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R.s.c., 1970, c. D-3

An Act to provide for the payment of pensions to certain persons enrolled as members of the Regular Forces before the 1st day of April 1946


Contents

Short Title

Short title

1. This Act may be cited as the Defence Services Pension Continuation Act.

1959, c. 21, s. 31.


Interpretation

Definitions

2. (1) In this Act

“child”

« enfant »

“child” means a child or stepchild of — or an individual adopted either legally or in fact by — an officer who at the time of the officer’s death was dependent on the officer for support;

“force”

« forces »

“force” means the officers, non-commissioned officers and men of the permanent militia corps, and includes the permanent staff of the militia;

“militiaman”

« milicien »

“militiaman” means a non-commissioned officer or private of the force;

“Minister”

« Ministre »

“Minister” means the Minister of National Defence or such other Minister as the Governor in Council may from time to time determine;

“officer”

« officier »

“officer” means a commissioned officer, a subordinate officer or a warrant officer of the force;

“permanent staff”

« état-major permanent »

“permanent staff” includes officers of the headquarters staff, officers of the district staff, and officers in charge of military stores;

“rank”

« grade »

“rank” means substantive rank or appointment, but does not include brevet, honorary, local or temporary rank, except in the case of temporary brigadier-generals; and non-combatant officers, such as quartermasters, commissaries of ordnance, and others who have honorary rank, shall, for the purposes of this Act, be considered to have substantive rank corresponding to their honorary rank;

“service”

« service »

“service” means service on the force;

“survivor”

« survivant »

“survivor”, in relation to an officer, means

(a) a person who was married to the officer at the time of the officer’s death, or

(b) a person referred to in subsection 32(1).

(2)�pan class="Repealed(Repealed, 1999, c. 34, s. 207)

R.S., 1970, c. D-3, s. 2; 1999, c. 34, s. 207.


Part I. Pensions

Compulsory retirement

3. (1) An officer who is retired compulsorily after twenty years service for any cause other than misconduct or inefficiency is entitled to a pension for life,

(a) equal to one-fiftieth of the pay and allowances of his rank or permanent appointment at the time of his retirement for each year of service if he is an officer appointed to the force, or a warrant officer promoted to or appointed to that rank, prior to the 1st day of May 1929; or

(b) equal to one-fiftieth of the average annual amount of the pay and allowances received by him during the three years immediately preceding his retirement for each year of his service if he is an officer appointed to the force, or a warrant officer promoted to or appointed to that rank, on or after the 1st day of May 1929.

Voluntary retirement after 25 years

(2) An officer who retires voluntarily after twenty-five years service is entitled to a pension for life, twenty per cent less than he would be entitled to if he were retired compulsorily.

After 20 years

(3) An officer who retires voluntarily after twenty years service is entitled to a pension for life equal to the greater of

(a) the pension that he would have been entitled to if he were retired compulsorily, reduced by five per cent for each complete year by which his age at the time of his retirement is less than the prescribed age limit for his rank, and

(b) the pension, if any, to which he is entitled under subsection (2);

but no pension is payable under this subsection unless a recommendation has been made by the Minister and approved by the Treasury Board that the retirement of such officer was in the public interest and that it is in the public interest that he be paid that pension.

Idem

(4) Notwithstanding subsection (2) or (3), a warrant officer who, at the end of a period of engagement or re-engagement, retires voluntarily after twenty years service is entitled to the same pension as if he were retired compulsorily.

After 35 years

(5) An officer who retires voluntarily after thirty-five years service is entitled to the same pension as if he were retired compulsorily.

Limit

(6) No addition shall be made to such pension for any service beyond thirty-five years.

Service not continuous

(7) Where the service has not been continuous, the period or periods during which such service has been discontinued shall not be counted.

Service in His Majesty’s regular forces

(8) Time served in His Majesty’s regular forces may be counted in the term of service for pension in the case of an officer transferred to the permanent force in connection with the taking over by the Government of Canada of the garrisons of Halifax and Esquimalt, subject to the provisions hereinafter contained as to deductions from the pension in cases where an officer becomes entitled to a pension and the deduction hereinafter provided for has not been made for as great a number of years as that upon which his pension is based.

Seconded officers

(9) Any officer who is or has been seconded shall, during the time that he is seconded, continue to contribute, from time to time, to the Consolidated Revenue Fund, sums equal to the deductions that would have been made from his pay if he had not been seconded, and he is in such case, upon his retirementrom the force, entitled, subject to this Act, to the pension that he would have received if he had continued to serve in the force until the time of his retirement.

Service in public service, C.E.F., etc.

(10) In the case of an officer who has been seconded or given leave of absence for service in a position in the public service of Canada or in the Canadian Expeditionary Force or in any other military force raised in Canada for service outside Canada and paid and maintained by the Government of Canada, or who has been permitted to serve in any such force, deductions at the rate of five per cent per annum shall be made from the salary or pay, as the case may be, which such officer is receiving in the public service or as an officer in any such force, and those deductions shall form part of the Consolidated Revenue Fund and shall be treated in all respects as deductions under this Act; and, notwithstanding anything in this Act, the pension granted an officer thus seconded, or thus serving in any such force shall be based on the average annual salary and allowances or pay and allowances, as the case may be, that, during the three years immediately preceding his retirement, the said officer received from the said Government in the public service, or in such force in whichever he may have been serving during the said three years.

Reservations from salary treated as deductions

(11) Where, by reason of a position in the public service of Canada to which any officer is seconded, he becomes subject to Part I of the Civil Service Superannuation Act, the reservations from his salary in the public service of Canada by the said Part I required to be made, shall be treated in all respects as deductions under this Act, and as satisfying the contributions that such officer is, by subsections (9) and (10), required to make.

Computation of pension of officers subject to Civil Service Superannuation Act

(12) The pension to which any such officer may become entitled shall be computed in respect of the average annual pay and allowances or salary and allowances of which he was in receipt while serving in the force, or, if seconded, in the public service of Canada, as the case may be, during the three years immediately preceding his retirement from the force.

Adjustment of pension of certain officers

(13) Any officer who, being seconded, dies after a period at which a pension might be granted him, shall, if he has made the contributions hereinbefore required, be deemed to be on full pay for the purposes of section 25.

Computation of pensions of members of Defence Council

(14) The pension of an officer who during his service was a member or associate member of the Defence Council for a period of not less than three continuous years and who, at the date of his retirement, is serving elsewhere in naval, army or air force employment, or is seconded, shall be computed on the average annual amount of the pay and allowances received by him during the last three years while serving as a member or associate member of the Defence Council, if a pension computed in such manner would be more beneficial to the officer than if computed as otherwise provided by this Act.

R.S., 1952, c. 63, s. 3, c. 310, s. 4; 1959, c. 21, s. 33; 1966-67, c. 44, s. 57.

Service as militiaman reckoned

4. Subject to the provisions of this Act in respect to the yearly deduction from a pension of five per cent upon average pay if a person who has served as a non-commissioned officer or private becomes an officer, the time that he has served as such non-commissioned officer or private may be included in his term of service for the purposes of this Act.

R.S., 1952, c. 63, s. 4.

Time served in public service

5. (1) Time served in the public service of Canada, that, under Part I of the Civil Service Superannuation Act, would be reckoned in computing the period of service for the purpose of a superannuation allowance under that Act, or time served in the public service of Canada that was of such a nature as could be reckoned in computing the period of service for purposes of a superannuation allowance under that Act had the officer remained in the public service and had elected to become a contributor under any Part of that Act, may be included in the term of service of an officer for the purposes of this Act.

Deduction reduced

(2) In such case, the yearly deduction of five per cent upon average pay under this Act from any pension shall be reduced by the average yearly deduction from the officer’s salary as an officer, clerk or employee in the Civil Service made under and for the purposes of the Civil Service Superannuation Act, or any amendment thereof, or under Part I of the Civil Service Superannuation and Retirement Act.

R.S., 1970, c. D-3, s. 5; 1976-77, c. 28, s. 49(E).

Service in R.C.M.P.

6. (1) Time served in the Royal Canadian Mounted Police as a police officer or constable may also be included in the term of service of an officer for the purposes of this Act.

Deduction reduced

(2) In such case the yearly deduction of five per cent upon average pay under this Act from any pension shall be reduced by the average yearly deduction from the officer’s salary or pay as a police officer made under and for the purposes of Part II of the Royal Canadian Mounted Police Act, chapter 160 of the Revised Statutes of Canada, 1927, or made under and for the purposes of the Civil Service Superannuation Act, chapter 18 of the Revised Statutes of Canada, 1886, or under Part I of the Civil Service Superannuation and Retirement Act.

R.S., 1952, c. 63, s. 6.

Officers' service reckoned

7. The following times may also be included in the term of service of an officer for the purposes of this Act:

(a) half the time served in the Active Militia other than the force, if he has served at least ten years in the force; but the time to be credited to an officer under this paragraph for Active Militia service shall in no case exceed ten years, and if an officer’s pension is increased by reason of this paragraph, then, in addition to the deductions mentioned in this Act, such pension shall be subject to an annual deduction for a number of years equal to the number of years added to his service under the authority of this paragraph, such deduction to be equivalent to five per cent of the pay that the officer was receiving at the time of his retirement from the force;

(b) time served as an officer, non-commissioned officer or man on active service during the war between Great Britain and Germany that commenced on the 4th day of August 1914;

(c) time served in the Royal Canadian Navy and the Permanent Active Air Force of Canada;

(d) time served on active service in the naval, army or air forces of His Majesty raised in Canada during time of war; and

(e) time served on active service during time of war in any of the naval, army or air forces of His Majesty other than those raised in Canada by any person who, having served on active service in any of the forces of His Majesty during the war that commenced on the 10th day of September 1939, was appointed to or enlisted in the force on or before the 31st day of March 1946.

R.S., 1952, c. 63, s. 7.

Pension conditional

8. An officer shall not have any right to a pension or gratuity unless the Minister is satisfied with the manner in which he has performed his duties.

R.S., 1952, c. 63, s. 8.

Deductions from pay

9. (1) A deduction toward making good the pensions hereinbefore mentioned shall be made from the pay of every officer at the rate of five per cent per annum on such pay; but such deduction shall not be made during more than thirty-five years of service.

Deductions not made for sufficient number of years

(2) Where an officer becomes entitled to a pension, and the deduction from his pay provided for in this section has not been made for as great a number of years as that upon which his pension is based, the aggregate amount of pay received by him during the years for which no such deduction has been made, shall be divided by the number of such years for the purpose of ascertaining the average pay of such officer during such years, and a yearly deduction amounting to five per cent upon such average pay shall be made from the pension of such officer, and such deduction shall continue to be made until the expiration of the number of years last mentioned or the cessation of the payment of the pension, whichever shall first happen; but if the officer thinks fit, the deficiency in the deduction may be made good by him in one payment.

C.r.f.

(3) The sums deducted under this section shall form part of the Consolidated Revenue Fund.

R.S., 1952, c. 63, s. 9.


Gratuities

Gratuity when pension not earned

10. (1) Where any officer is constrained by any infirmity of body or mind to quit the force before a period at which a pension might be granted to him, the Minister may, on the recommendation of a board composed of three officers of rank not lower than that of major, selected by the Defence Council, allow him a gratuity not exceeding one month’s pay for each year of his service.

Gratuity in case of severe injury

(2) Where any such officer is so constrained to quit the service before such period by reason of severe bodily injury, received without his own fault, in the discharge of his duty, the Minister may, on the recommendation of such board, allow him a gratuity not exceeding three months pay for every two years service.

Gratuity in case of death before pension

(3) When an officer dies before a period at which a pension might be granted him, the Governor in Council may grant to his survivor, or, if he leaves no survivor, to his children under eighteen years of age at the date of his death a gratuity equal to the amount of the deductions made under subsection 9(1) from the officer’s pay during his service.

If no survivor or child

(4) When an officer dies leaving no survivor or child to whom a gratuity under subsection (3) or a pension or compassionate allowance under this Act would be payable, but who leaves a father, mother, brother, sister or child who, at the date of the officer’s death was wholly or partially dependent on him for support, the Governor in Council may grant to the person or persons so dependent a gratuity not exceeding in the aggregate the amount of the deductions made under subsection 9(1) from the officer’s pay during his service.

R.S., 1970, c. D-3, s. 10; 1999, c. 34, s. 208.

Gratuity in case of reduction of staff

11. Where an officer is removed or retired to promote efficiency or economy in the service, the Minister may, on the recommendation of a board constituted as aforesaid, grant him such gratuity as he would have been entitled to if he had been retired in consequence of permanent infirmity of body or mind.

R.S., 1952, c. 63, s. 11.


Pensions To Non-commissioned Officers And Men

Militiaman’s pension service

12. (1) Subject to this Act, every militiaman is entitled to retire and receive a pension for life who

(a) has completed not less than twenty years service, or

(b) has completed not less than fifteen years service, and is incapacitated for the performance of his duty by infirmity of mind or body.

Return to service

(2) Every militiaman who receives a pension under this section before he has completed twenty years service is subject to return to service, as provided by this Act if he ceases to be incapacitated.

R.S., 1952, c. 63, s. 12.

Computation

13. (1) The pension to a militiaman on retirement shall be,

(a) if he has completed fifteen but less than twenty years service, an annual sum equal to one-fiftieth of the annual pay and allowances of which he was in receipt on retirement for every year of service;

(b) if he has completed twenty but less than twenty-five years service, an annual sum equal to twenty-fiftieths of the annual pay and allowances of which he was in receipt on retirement with an addition of two-fiftieths of the pay and allowances for every year of service over twenty years; or

(c) if he has completed twenty-five years service, an annual sum equal to thirty-fiftieths of the annual pay and allowances of which he was in receipt on retirement with an addition of one-fiftieth of the annual pay and allowances for every year of service over twenty-five years, but the annual pension shall not exceed two-thirds of his annual pay and allowances at his retirement.

Time served in regular forces

(2) Time served in His Majesty’s regular forces may be counted toward pension in the case of non-commissioned officers and men transferred to the permanent force in connection with the taking over by the Government of Canada of the garrisons of Halifax and Esquimalt; and in the case of such non-commissioned officers and men as have been or may hereafter be transferred from His Majesty’s regular forces to the permanent force under arrangements made between His Majesty’s Government and His Majesty’s Canadian Government as to the pensioning of such non-commissioned officers and men.

Militiaman’s service reckoned

(3) The following times may also be included in the term of service of a militiaman for the purposes of this Act:

(a) time served in the employment of the Government of Canada in connection with the militia stores of Canada prior to the organization of the Ordnance Stores Corps;

(b) time served when on active service during the war between Great Britain and Germany that commenced on the 4th day of August 1914;

(c) time served in the Royal Canadian Navy and the Permanent Active Air Force of Canada;

(d) time served on active service in the naval, army or air forces of His Majesty raised in Canada during time of war; and

(e) time served on active service during time of war in any of the naval, army or air forces of His Majesty other than those raised in Canada by any person who, having served on active service in any of the forces of His Majesty during the war that commenced on the 10th day of September 1939, was appointed to or enlisted in the forces on or before the 31st day of March 1946.

R.S., 1952, c. 63, s. 13.

Estimating pensions

14. For the purposes of estimating a pension to a militiaman,

(a) if the service has not been continuous, the period or periods during which such service has been discontinued shall not be counted; and

(b) the annual pay of a militiaman at the date of retirement shall be deemed to be the average annual amount of pay, exclusive of extra pay or allowances, received by him during the three years last preceding such retirement, and not the annual amount actually received by him at that date.

R.S., 1952, c. 63, s. 14.

Certificate from board

15. No pension shall be granted to any militiaman unless a board composed of three officers, the rank of one of whom shall be not lower than that of major, has certified to his length of service and conduct, and that evidence has been adduced before it which justifies the granting of a pension under this Act.

R.S., 1952, c. 63, s. 15.

Militiaman required to retire

16. When any militiaman has completed a service of twenty years, the Defence Council, upon the recommendation of such a board, may require him to retire upon the terms as to pensions prescribed by this Act.

R.S., 1952, c. 63, s. 16.

Certificate of medical board

17. (1) Before a pension is granted to a militiaman who, after having served for less than twenty years, retires on the ground of his being incapacitated by infirmity of mind or body for the discharge of his duty, a medical board constituted in accordance with regulations made under the National Defence Act shall certify that such militiaman is so incapacitated and that the incapacity is likely to be permanent.

Evidence required

(2) Such militiaman shall thereafter when required and until the power under this Act of requiring the militiaman to serve again ceases, furnish satisfactory evidence, certified by a legally qualified medical practitioner, that such incapacity continues.

R.S., 1952, c. 63, s. 17; 1959, c. 21, s. 34.

Incapacity ceasing

18. (1) In the event of such incapacity ceasing before the expiration of such time as would, together with the period of service prior to his retirement, make up a period of twenty years, the militiaman is liable to serve again in the force.

Forfeiture of pension

(2) Where before the expiration of the said time he declines so to serve or when serving again he neglects while he is in a competent state of health to perform his duty satisfactorily, he shall forfeit his pension.

R.S., 1952, c. 63, s. 18.

Retirement after renewed service

19. A militiaman so serving again is entitled to retire at the same time as he would have been entitled to retire if the time that elapsed between his retirement and the renewal of his service were service, but the time so elapsed shall not be reckoned as service in calculating his pension on his final retirement.

R.S., 1952, c. 63, s. 19.

Failure or refusal to be examined

20. (1) Where a militiaman fails or refuses, when required, to be examined by a legally qualified medical practitioner, the Minister has the same power of requiring such militiaman to serve again as he would have under this section, if satisfied by the evidence of a legally qualified medical practitioner that the incapacity of such militiaman had ceased.

Forfeiture of pension

(2) In such case the Minister may with the approval of the Governor in Council declare forfeited the pension of such militiaman.

R.S., 1952, c. 63, s. 20.

Infirmity contributed to by militiaman

21. When a pension is granted to a militiaman on account of infirmity of mind or body, and such infirmity is certified by a medical board constituted as aforesaid, to have been brought about or contributed to by his own fault, or by his vicious habits, and such militiaman is entitled under this Act to a pension of a fixed amount, the Governor in Council may grant to him a less amount of pension than the amount to which he would otherwise have been entitled.

R.S., 1952, c. 63, s. 21.

22. (Repealed, 1992, c. 46, s. 82)


Offences And Penalties

Obtaining pension by fraud

23. Every militiaman who obtains a pension under this Act by any false representation or false evidence, or by personation, or by malingering or feigning disease or infirmity, or by maiming or injuring himself, or causing himself to be maimed or injured, or otherwise producing disease or infirmity, or by any other fraudulent conduct, is liable on summary conviction to imprisonment, with or without hard labour, for a period not exceeding twelve months, or to a fine not exceeding one hundred dollars, and shall forfeit the pension obtained.

R.S., 1952, c. 63, s. 23.

Summary conviction

24. Prosecutions under section 23 may be had under the provisions of the Criminal Code relating to summary convictions.

R.S., 1952, c. 63, s. 24.


Provision For Officers' Survivors And Children

Pension to survivors and compassionate allowance to children

25. (1) Subject to the provisions hereinafter contained, the Minister may, as to him or her seems fit, grant a pension to the survivor and a compassionate allowance to each of the children of any officer who, at the time of death being on full pay, dies after a period at which a pension might be granted him, or who was, at the time of his death, in receipt of a pension.

If two survivors

(2) If the Minister grants a pension to two survivors, the total amount of the pension shall be apportioned between the two survivors in accordance with subsection 32(3).

R.S., 1970, c. D-3, s. 25; 1974-75-76, c. 81, s. 50; 1999, c. 34, s. 209.

Where not granted

26. Such pension or compassionate allowance shall not be granted

(a) and (b)�(Repealed, 1992, c. 46, s. 83)

(c) if the deceased officer had been excused, at his own request, from serving, though capable of service, when called upon and required to serve, after having been officially warned that his family would thereby lose all claims to pension and compassionate allowance;

(d) if the survivor began to cohabit with the officer in a relationship of a conjugal nature, or married, the officer after the officer retired;

(e) if, at the time the survivor began to cohabit with the officer in a relationship of a conjugal nature, or married the officer, the officer had attained the age of sixty years; or

(f)�(Repealed, 1992, c. 46, s. 83)

(g) if the officer died within one year after his marriage, unless he was manifestly in good health at the time of his marriage, and his death was caused by disease or injury not due to causes within his own control, and the Minister is satisfied that there are no other objections to the granting of the pension or compassionate allowance.

R.S., 1970, c. D-3, s. 26; 1992, c. 46, s. 83; 1999, c. 34, s. 210.

Election

26.1 (1) Where an officer who is in receipt of a pension has a spouse and, by reason of paragraph 26(d) or (e), a pension could not be granted to the spouse under section 25 in the event of the officer’s death, the officer may elect, at the prescribed time and in the prescribed manner, to reduce the amount of the officer’s pension in order that a pension could be granted to the spouse under subsection (3).

Reduction of pension

(2) If an officer makes an election, the amount of the officer’s pension shall be reduced in accordance with the regulations, but the actuarial present value of both the reduced pension and the pension that could be granted to the spouse under subsection (3) may not be less than the actuarial present value of the officer’s pension immediately before the reduction is made.

Pension to widow

(3) The Minister shall grant a pension to the widow of any officer who makes an election if

(a) the widow was the spouse of the officer both at the time of the election and at the time of death; and

(b) the election has not been revoked under subsection (5).

Amount of pension

(4) The pension granted to a widow under subsection (3) shall be in an amount determined in accordance with the regulations.

Revocation of election

(5) If an officer who makes an election is subsequently enrolled in or transferred to the regular force and required by subsection 5(1) of the Canadian Forces Superannuation Act to contribute to the Canadian Forces Superannuation Account, the election is deemed to be revoked at the time determined in accordance with the regulations, but otherwise an election is irrevocable.

Section 32 does not apply

(6) Section 32 does not apply to a widow who is granted a pension under subsection (3).

Regulations

(7) The Governor in Council may make regulations

(a) prescribing the time at which and manner in which an election may be made under subsection (1);

(b) respecting the reduction to be made in the amount of an officer’s pension under subsection (2);

(c) respecting the amount of the pension granted to a widow under subsection (3);

(d) determining the time at which an election is deemed to be revoked under subsection (5); and

(e) generally as the Governor in Council considers necessary for carrying out the purposes and provisions of this section.

1992, c. 46, s. 84.

Pension one-half of officer’s pension

27. The pension of a person who was married to an officer shall, if the officer was at the time of his death on full pay, be an amount equal to one-half of the pension to which he would have been entitled if he had been retired compulsorily immediately before his death, or, if at the time of his death he had been pensioned, an amount equal to one-half of the pension.

R.S., 1970, c. D-3, s. 27; 1999, c. 34, s. 211.

Compassionate allowance

28. (1) The compassionate allowance to a child shall be as follows: the child of a colonel or lieutenant-colonel, eighty dollars; of a major, seventy dollars; of a captain, sixty-five dollars; of a lieutenant or second lieutenant, fifty dollars; of a warrant officer, twenty-five dollars.

If no pension to survivor

(2) If no pension is payable to a survivor under this Act, the allowance shall be double that fixed by subsection (1).

R.S., 1970, c. D-3, s. 28; 1999, c. 34, s. 212.

Amount to family limited

29. The total amount paid to the survivor and children of an officer during any year shall not exceed the amount of the pension that the officer was in receipt of, or to which he would have been entitled, as the case may be.

R.S., 1970, c. D-3, s. 29; 1999, c. 34, s. 213.

30. (1)�(Repealed, 1992, c. 46, s. 85)

(2)�(Repealed, 1989, c. 6, s. 12)

(3)�(Repealed, 1992, c. 46, s. 85)

Officers' children

31. The compassionate allowance to officers' children shall not be granted to a child over the age of twenty-one, and the allowance shall cease when the child reaches the age of twenty-one.

R.S., 1970, c. D-3, s. 31; 1989, c. 6, s. 13.

Person considered to be the survivor

32. (1) For the purposes of this Act, when a person establishes that he or she was cohabiting in a relationship of a conjugal nature with an officer or former officer for at least one year immediately before the death of the officer or former officer, the person is considered to be the survivor of the officer or former officer.

Person considered to be married

(2) For the purposes of this Act, when an officer or former officer dies and, at the time of death, the officer or former officer was married to a person with whom he or she had been cohabiting in a relationship of a conjugal nature for a period immediately before the marriage, that person is considered to have become married to the officer or former officer on the day established as being the day on which the relationship began.

Apportionment of pension when two survivors

(3) When a pension is payable to a survivor and there are two survivors of the officer or former officer, the total amount of the annual allowance shall, subject to subsection (4), be apportioned so that

(a) the survivor referred to in paragraph (a) of the definition "survivor" in subsection 2(1) is entitled to receive the proportion of the pension that the total of the number of years that he or she cohabited with the officer or former officer while married to the officer or former officer and the number of years that he or she cohabited with the officer or former officer in a relationship of a conjugal nature bears to the total number of years that the officer or former officer so cohabited with the survivors; and

(b) the survivor referred to in paragraph (b) of that definition is entitled to receive the proportion of the pension that the number of years that he or she cohabited with the officer or former officer in a relationship of a conjugal nature bears to the total number of years that the officer or former officer cohabited with the survivors, either while married or while in a relationship of a conjugal nature.

Exception

(4) If one of the two survivors is found criminally responsible for the death of the officer or former officer or if, when the officer or former officer dies, it is established to the satisfaction of the Minister that one of the survivors cannot be found, the other survivor shall receive the first survivor’s portion, in addition to his or her own portion.

Death of one of the survivors after apportionment

(5) When one of the two survivors dies after apportionment, the portion of the pension that would have been payable to the survivor who died shall be paid to the remaining survivor in addition to his or her own portion.

R.S., 1970, c. D-3, s. 32; 1974-75-76, c. 81, s. 51; 1992, c. 46, s. 86; 1999, c. 34, s. 214.

Pension to officer or militiaman of His Majesty’s Army Reserve who enlisted in Permanent Force

33. (1) An officer or militiaman who, while belonging to His Majesty’s Army Reserve, enlisted in the Permanent Force and who on the calling out of the Army Reserve upon the commencement of the war between Great Britain and Germany in August 1914, was under liability as a member of such Army Reserve to rejoin his corps, but who, under arrangements made with His Majesty’s Government, was not discharged from the Force subsequent to the calling out of the Army Reserve shall, if he so elects as provided in subsection (2) be granted a pension equal to that which he would have received from British Funds had he rejoined his corps upon the said calling out of the Army Reserve, and served in His Majesty’s Regular Army in ranks corresponding to those he held from time to time in the Canadian Military Forces until the date he was struck off the strength of the Canadian Expeditionary Force, such pension to commence as of and from the date following that on which such officer or militiaman was struck off the strength of the Canadian Expeditionary Force.

Election

(2) An officer or militiaman to whom subsection (1) applies, shall be required to elect whether he shall be granted the pension therein mentioned, and if he so elects his service from the date of his enlistment in the Force while belonging to the said Army Reserve until the date he was struck off the strength of the Canadian Expeditionary Force, shall not be included in the term of service for any other pension or a gratuity under this Act; any gratuity or pension under this Act granted to an officer or militiaman prior to his so electing shall be re-computed as of the date on which the pension mentioned in subsection (1) commenced by excluding from the term of service on which such gratuity or pension was based the service first mentioned in this subsection; if by the exclusion of such service the officer or militiaman has not sufficient service to entitle him to a gratuity or pension, or the gratuity or pension to which he would be entitled on such re-computation is less than the gratuity or pension heretofore granted, there will be recovered from the pension payable to such officer or militiaman, under subsection (1), all payments of gratuity and pension or overpayments thereof which have resulted; but if an officer who has already been granted a pension under this Act elects as aforesaid, and by the exclusion of the service mentioned he becomes ineligible for the grant of such pension, but becomes eligible for the payment of a gratuity under this Act, then such gratuity shall be applied toward the recovery of the payments of pension already made, and any balance of such payments not met by the application of such gratuity shall be recovered from the pension payable to such officer under subsection (1).

R.S., 1952, c. 63, s. 32.

Provision of 1919, c. 61, to apply to certain cases

34. The provisions of chapter 61 of the Statutes of Canada, 1919, being An Act to amend the Militia Pension Act, which came into force on the 7th day of July 1919, apply to those officers and militiamen who by reason of wounds or disabilities received or suffered while on active service during the war between Great Britain and Germany, which commenced on the 4th day of August 1914, were retired or discharged from the force prior to the said 7th day of July 1919, and an officer who, by reason of such retirement before a period at which a pension might have been granted him, received a gratuity and who will by virtue of this section, become eligible for the grant of a pension under this Act, shall be required to elect whether he shall be granted such pension and if he so elects he shall repay such gratuity in such manner as the Governor in Council may determine.

R.S., 1952, c. 63, s. 33.

Order to pay pension to another

35. Where the Minister is of the opinion that the pensioner is incapable of expending or is not expending the pension in a proper manner, the Minister may order that the pension be paid to such person as the Minister may appoint, in order that the money may be expended by that person, for the benefit of the pensioner and the members of the pensioner’s family, and the expenses connected with such payment, if any, shall be paid by the Minister.

R.S., 1970, c. D-3, s. 35; 1980-81-82-83, c. 100, s. 45; 1995, c. 18, s. 86.

Diversion of payments to satisfy financial support order

35.1 (1) When any court in Canada of competent jurisdiction has made an order requiring a pensioner to pay financial support, amounts payable to the pensioner under this Act are subject to being diverted to the person named in the order in accordance with Part II of the Garnishment, Attachment and Pension Diversion Act.

Payment deemed to be to pensioner

(2) For the purposes of this Act, any payment made pursuant to subsection (1) shall be deemed to have been made to the pensioner in respect of whom the payment was made.

(3)�(Repealed, 2000, c. 12, s. 98)

1980-81-82-83, c. 100, s. 45; 1999, c. 34, s. 215; 2000, c. 12, s. 98.


Part Ii

Royal Canadian Navy

36. This Act, subject to the modifications set out in this Part, applies with respect to the Royal Canadian Navy.

R.S., 1952, c. 63, s. 35.

Definitions

37. (1) In the application of this Act to the Royal Canadian Navy,

“force”

« forces »

“force” means the Royal Canadian Navy;

“man”

« homme »

“man” means chief petty officer, petty officer, leading seaman, able seaman and ordinary seaman and equivalent in the Royal Canadian Navy, and the expression "militiaman", as used in this Act, includes a “man” as herein defined;

“officer”

« officier »

“officer” means a commissioned officer, a subordinate officer and a warrant officer of the Royal Canadian Navy;

“pay”

« solde »

“pay” means full pay including, in the case of an officer, specialist’s pay, and, in the case of a man, pay for non-substantive rank held, and includes in both cases marriage allowance and the allowances payable in lieu of lodging, provisions, light and fuel, but shall exclude all other extra pay;

“rank”

« grade »

“rank” means substantive rank, and includes Commodore First Class;

“service”, in the case of a man

« service », dans le cas d’un homme

“service”, in the case of a man, does not include time served without pay in the force;

“service”, in the case of an officer

« service », dans le cas d’un officier

“service”, in the case of an officer, includes

(a) one-half of the time served in the force while in receipt of unemployed pay or half pay, and

(b) one-half of the time served in the Royal Canadian Naval Reserve or Royal Canadian Naval Volunteer Reserve if he has served at least ten years in the Royal Canadian Navy, but the time to be credited to an officer under this definition for service in the Royal Canadian Naval Reserve or Royal Canadian Naval Volunteer Reserve shall in no case exceed ten years; and if an officer’s pension is increased under the authority of this definition, then in addition to the deductions mentioned in this Act, such pension shall be subject to an annual deduction for a number of years equal to the number of years added to his service under the said authority, such deduction to be equivalent to five per cent of the pay that the officer was receiving at the time of his retirement from the force.

Allowances

(2) Notwithstanding that lodging, provisions, light an fuel, or any of them, are furnished in kind to an officer, the deductions from pay and pension, mentioned in section 9, and the pensions provided by this Act shall be computed as if the allowances in lieu thereof had in fact been paid.

R.S., 1970, c. D-3, s. 37; 1974-75-76, c. 81, s. 52(E).

Promotion to rank of acting warrant officer

38. Notwithstanding anything in this Act, a man who subsequent to the 10th day of September 1939 but prior to the 1st day of January 1947 was promoted to the rank of acting warrant officer shall be treated as a man for the purposes of this Act during the period that he continued to be an acting warrant officer.

R.S., 1952, c. 63, s. 37.

Compassionate allowance to child

39. With respect to the payment of a compassionate allowance to the child of an officer under this Act, the allowance so payable shall be by reference to the equivalent naval rank held.

R.S., 1952, c. 63, s. 38.


Part Iii

Permanent Active Air Force

40. This Act, subject to the modifications set out in this Part, applies with respect to the Permanent Active Air Force.

R.S., 1952, c. 63, s. 39.

Definitions

41. In applying this Act to the Permanent Active Air Force,

“force”

« forces »

“force” means the Permanent Active Air Force and any other component of the Royal Canadian Air Force the members of which are enlisted or appointed for continuing full-time service;

“man”, “militiaman”

« homme », « milicien »

“man” means a non-commissioned officer or aircraftman of the force, and the expression “militiaman”, as used in this Act, includes a “man” as herein defined;

“officer”

« officier »

“officer” means a commissioned officer, a subordinate officer or a warrant officer of the force;

“service”, in the case of a man

« service », dans le cas d’un homme

“service”, in the case of a man, includes

(a) time served with pay or salary in the public service of Canada under the Air Board prior to the 1st day of April 1924, and

(b) time served with pay in the Canadian Air Force prior to the 1st day of April 1924;

“service”, in the case of an officer

« service », dans le cas d’un officier

“service”, in the case of an officer, includes

(a) time served with pay or salary in the public service of Canada under the Air Board prior to the 1st day of April 1924,

(b) time served with pay in the Canadian Air Force prior to the 1st day of April 1924, and

(c) half the time served in the Canadian Air Force other than as mentioned in paragraph (b) or in the Royal Canadian Air Force other than the force, but the time to be credited under this paragraph shall in no case exceed ten years, and if an officer’s pension is increased by reason of this paragraph, then in addition to the deductions mentioned in section 9, such pension shall be subject to an annual deduction for a number of years equal to the number of years added to his service under this paragraph, such annual deductions to be equal to five per cent of the pay that the officer was receiving at the time of his retirement from the force.

R.S., 1952, c. 63, s. 40.

Compassionate allowance to child

42. With respect to the payment of a compassionate allowance to the child of an officer under this Act, the allowance so payable shall be by reference to the equivalent Air Force rank held.

R.S., 1952, c. 63, s. 41.


Part Iv. General

Time and duration of payment

43. Pensions and compassionate allowances granted under this Act are, unless otherwise ordered by the Governor in Council, payable in equal monthly instalments in arrears, and unless otherwise specified by this Act shall continue during the lifetime of the recipient and thereafter until the end of the month during which he dies.

1959, c. 21, s. 35.

Fractions of years

44. For the purpose of computing pensions or gratuities, fractions of years of service shall be counted.

1959, c. 21, s. 35.

Act not applicable to certain persons

45. This Act does not apply to officers or militiamen who were not in the forces on the 31st day of March 1946 and who were or are appointed to or enlisted in the forces subsequent to that day and who have not been granted a pension under this Act.

R.S., 1952, c. 63, s. 44.

"Service"

46. For the purpose of computing a pension under any of Parts I to III with respect to an officer, "service" in any such Part, in addition to any periods specified in Parts I to III, includes any continuous period of full-time service of six months or more in the naval, army or air forces of His Majesty raised in Canada other than the forces as defined in such Part, under such circumstances and to such extent as the Governor in Council may by regulation prescribe, but such service may not be counted as service under any other provision of any of such Parts, except to the extent prescribed by paragraph 7(a), paragraph (b) of the definition "service" in the case of an officer, in subsection 37(1) or paragraph (c) of the definition "service" in the case of an officer, in section 41, for the purpose of determining eligibility for pension.

R.S., 1952, c. 310, s. 4; 1953-54, c. 13, s. 2.

Regulations

47. The Governor in Council may make regulations

(a) prescribing the extent to which and the manner in which any person in receipt of a pension under any of Parts I to III who, after his retirement from the forces, is appointed to a position in the public service of Canada or is appointed to or enlists in the naval, army or air forces of Canada, may count that additional service for the purpose of computing his pension under such Part; and

(b) providing for payment out of the Consolidated Revenue Fund, upon the death of any person in respect of whom any pension or compassionate allowance becomes payable under any of Parts I to III upon application to the Minister by or on behalf of any successor thereunder to whom any such pension or allowance becomes payable, of the whole or any part of such portion of any estate, legacy, succession or inheritance duties or taxes that are payable by the successor as is determined in accordance with the regulations to be attributable to that pension or allowance, and prescribing the amounts by which and the manner in which any such pension or allowance shall be reduced.

1953-54, c. 13, s. 3; 1959, c. 21, s. 36.

Offence

48. Any person who knowingly makes any statement or gives any information that is false in any material particular for the purpose of obtaining, either for himself or for any other person, any payment under any of Parts I to III is guilty of an indictable offence and is liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars, or to both.

1955, c. 28, s. 17.

Recovery of debit balance in pay account of former member

49. (1) Any debit balance in the pay account of a former member of the forces may be recovered from any pension or gratuity to which he is entitled under any of Parts I to III or from any amount that becomes payable under any of Parts I to III to his service estate, whether such debit balance existed at the time of his retirement or was ascertained after that time.

Idem

(2) Recovery of a debit balance pursuant to this section shall be effected in such manner and to such extent as may be prescribed by regulations made by the Governor in Council, but, in the case of any pension or gratuity to which a former member of the forces is entitled under any of Parts I to III, such recovery shall not be effected unless notice of the existence of the debit balance and the amount thereof has been given to him or has been forwarded by registered mail addressed to him at his latest known address.

Unpaid instalments

(3) Where a person who is entitled under any of Parts I to III to contribute in respect of any service and has undertaken to contribute in respect of that service by instalments, ceases to be a member of the forces before all the instalments have been paid, the unpaid instalments may be reserved, in accordance with the regulations, from any amount payable to him by Her Majesty, including any pension or gratuity payable to him under any of Parts I to III, until such time as all the instalments have been paid or the contributor dies, whichever occurs first.

1959, c. 21, s. 37.

Pension to include amount of augmentation

50. (1) For the purposes of this Act, the pension payable to a recipient under any of Parts I to III is the pension otherwise payable to the recipient thereunder, plus any amount by which that pension was, by Order in Council P.C. 77/8785 of the 26th day of September 1942 made under the War Measures Act, authorized to be augmented, which Order shall, for the purposes of this Act, be deemed to have been made under a provision of this section that, at the time when the Order was made, authorized the making thereof, and to have continued in effect thereafter, in respect of any service before the 31st day of March 1947 in respect of which such augmentation was authorized, notwithstanding the revocation of such Order on the 31st day of March 1947.

Public Service Pension Adjustment Act

(2) For the purposes of the Public Service Pension Adjustment Act, a pension equal to the amount by which any pension otherwise payable to a recipient under any of Parts I to III was authorized as described in subsection (1) to be augmented shall be deemed to be payable to the recipient under this section, in the same manner, at the same time, for and in respect of the same period and subject to the same terms and conditions as the pension authorized to be augmented.

R.S., 1970, c. D-3, s. 50; 1974-75-76, c. 81, s. 106(F).

Regulations

51. The Governor in Council may make regulations

(a) providing for the counting as service under any of Parts I to III of service as a member of the Canadian Forces after the coming into force of Part I of the Canadian Forces Reorganization Act to the extent provided under this Act for the counting of service in the naval, army or air forces of Canada; and

(b) for the making of such other adaptations of any of the provisions of this Act as are necessary in order to give effect to those provisions in relation to sections 14 to 17, subsections 20(1) and (2), and section 21 of the National Defence Act.

R.S., 1970, c. D-3, s. 51; 1974-75-76, c. 81, s. 53.


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