Family Law and Your Pension (Post-2011 Rules)

If your family law valuation date occurs before you retire and your pension is to be divided, payment will be made by transferring the lump sum value of your former spouse’s share of your pension to either:

1. a locked-in retirement account (LIRA), or
2. a life income fund (LIF), or
3. another Canadian registered pension plan, if that plan will accept the transfer.

Depending on the terms of your settlement instrument, the payment to your former spouse may be adjusted to include interest for the period between the family law valuation date and the date the payment is made to your former spouse.

The amount paid to your former spouse will reduce your future pension when you retire or leave the OPSEU Pension Plan. Dividing your pension will not affect the date you may qualify for early retirement or your eligibility for post-retirement insured benefits provided by the Government of Ontario.

If your family law valuation date occurs after you retire and start receiving your pension and your pension is to be divided, your former spouse’s share of your pension will be paid to them as a monthly pension from OPTrust.

Your monthly pension payments from OPTrust will be reduced accordingly to reflect the amount that is paid to your former spouse.

Arrears: If you received your full pension payments between the family law valuation date and the month your pension payments are divided, the law requires that your former spouse be paid their portion of these amounts. Unless it is specifically waived in your settlement instrument, payment of these arrears is mandatory and will result in an increase to your former spouse’s pension and a corresponding decrease to your monthly pension.

Payment ends: If you divide your pension, the monthly pension paid to your former spouse will be paid until the earlier of your date of death or your former spouse’s date of death. This means if your former spouse predeceases you, the portion of your pension that was being paid to your former spouse will revert back to being paid to you, unless a settlement instrument or court order explicitly provides for payments to continue to your spouse's estate after their death. If you predecease your former spouse, payments to you and your former spouse will stop, and your former spouse would then be eligible for a survivor pension from OPTrust unless they waived their right to a survivor pension.

If you require a family law valuation, you or your former spouse will need to complete a FSRA Application for Family Law Value (Family Law Form FL-1) and send it to OPTrust. If you were in common-law relationship, only you can complete the FSRA Family Law Form FL-1; it cannot be completed by your former common-law spouse. The FSRA Family Law Form FL-1 provides information about each of the supporting documents that you will also need to provide to OPTrust.

To authorize a third party, such as a lawyer, to communicate with OPTrust about your family law value, OPTrust requires your written authorization to disclose information. Your former spouse can also provide written authorization to OPTrust to communicate with their lawyer or another third party.

OPTrust must receive the completed application – including all required supporting documents – before we can prepare a valuation.

OPTrust will send you and your former spouse a FSRA Statement of Family Law Value within 60 days of receiving your completed application.

This statement will provide you with the family law value of your pension and the maximum amount that may be paid to your former spouse if you decide to divide your pension.

If you and your former spouse decide to divide your pension, the details – including the portion of the family law value to be paid to your former spouse – must be set out in your settlement instrument.

If you decide your pension will not be divided, you can notify OPTrust.

If you and your former spouse decide to divide your pension, your former spouse will need to complete the applicable FSRA family law application form and forward it to OPTrust, together with a certified copy of your settlement instrument and any other supporting documents that may be required.

• If your spousal relationship ended before you retired, your former spouse will need to complete and submit a FSRA Spouse's Application for Transfer of a Lump Sum (Family Law Form FL-5) to OPTrust.
• If your spousal relationship ended after you retired, your former spouse will need to complete and submit a FSRA Spouse's Application to Divide a Retired Member’s Pension (Family Law Form FL-6), to OPTrust.

Once OPTrust has received your former spouse’s complete application to divide your pension, including the required supporting documents, we will arrange to i) transfer a lump sum amount, or ii) begin monthly pension payments to your former spouse within 60 days, as required.

If a lump sum is paid out, your pension will be adjusted on the date you terminate your plan membership or retire. The estimated adjustment to your future pension entitlement will be shown on the Annual Pension Statement you receive from OPTrust each spring.

If you have already retired and are receiving a pension from OPTrust, your pension will be adjusted immediately. Your adjusted monthly pension amount will be shown on the Pension Information Change Statement you receive from OPTrust.

No. It is not mandatory to divide your pension if your marriage ends. However, depending on your circumstances, you may choose or be required to divide your pension when you split your family property with your former spouse.

No. It is not mandatory to value or divide your pension if your common-law relationship ends. However, depending on your circumstances, you may have your pension valued and divided if you and your former spouse agree.

Yes. OPTrust cannot pay your former spouse part of the value of your pension unless you have applied for and received a FSRA Statement of Family Law Value from OPTrust. To divide your pension, your settlement instrument must use a family law value amount based on the information that is provided to you and your former spouse by OPTrust on this form.

Yes. Under the law, you and your former spouse must use the FSRA family law forms at each step in the pension valuation and division process. The forms and information about how to complete them are available on FSRA’s website. Once you have completed each form, it should be sent to OPTrust directly, not to FSRA.

Yes. You and your former spouse must provide OPTrust with valid copies of each of the required documents listed on each applicable FSRA family law form before your application is considered complete. OPTrust cannot process your application until we have received all the required documents.

A “certified copy” is a copy of the original document that is certified by a lawyer, notary public or commissioner of oaths as being a “true copy” of the original document. A photocopy of one of these documents that is not certified by an authorized person will not be accepted.

Yes. If you want to authorize your lawyer or another third party to communicate with OPTrust about the valuation and division of your pension on your behalf, you can complete the Authorization for the Release of Personal Information (OPTrust 3004) form and submit it to OPTrust or send us authorization in writing. Your former spouse can also provide OPTrust with written authorization to communicate with their lawyer or another third party.

The start date of your spousal relationship is a date agreed to by you and your former spouse. This date cannot be earlier than the day you began living together in a common- law relationship or later than the date you were legally married (if applicable). You and your former spouse can confirm the start date of your spousal relationship by providing OPTrust with one of the proof documents listed in the FSRA Application for Family Law Value (Family Law Form FL-1). This could be either a certified copy of your marriage certificate, a certified copy of your settlement instrument specifying the start date of your spousal relationship, or a completed Appendix A - Joint Declaration of Period of Spousal Relationship.

You and your former spouse must agree on your family law valuation date before OPTrust can calculate the family law value of your pension. You can confirm your family law valuation date when applying for a family law valuation by providing OPTrust with one of the proof documents listed on the FSRA Family Law Form FL-1 such as a certified copy of your settlement instrument specifying the date or a completed Appendix A - Joint Declaration of Period of Spousal Relationship.

If you cannot agree on your family law valuation date, you and your former spouse can request that OPTrust provide family law values for your pension based on two different dates, using the Appendix B - Request for Two Family Law Values. Your final domestic contract, court order, or family law arbitration award that provides for the division of your pension must refer to one of the family law valuation dates included in the Appendix B. Otherwise, if the dates don’t match you will have to apply to OPTrust again for a revised family law valuation based on the final date.

No. OPTrust does not currently charge a fee for providing you and your former spouse with a statement of the family law value of your pension.

No, there are no deadlines for submitting your application(s). However, if you will be dividing your pension, it is advisable to complete the process as soon as possible, as you or your former spouse’s circumstances may change. If applicable, interest or arrears may also be deducted from your share of your pension for the period between your family law valuation date and the date your pension assets are divided.

No, you do not need to repay any arrears to OPTrust. When your pension is divided your monthly pension will be adjusted on a go-forward basis to account for any arrears owing to your former spouse.

Yes. We will notify you and your former spouse if we do not have all the required information and supporting documents needed to process your application. To avoid delays, please be sure to complete the required sections of each FSRA family law form and review the list of required documents and information provided on FSRA’s website.

By law, your former spouse cannot receive more than 50 per cent of the family law value of the pension you earned during your spousal relationship. Depending on the terms of your settlement instrument, OPTrust may also be required to pay interest and/or arrears for the period between your family law valuation date and the date on which your pension assets are divided. In this case, your share of your pension would be adjusted to reflect these payments.

Yes. All pension service that you earned and paid for during your spousal relationship is included when OPTrust calculates the family law value of your pension. This includes regular contributory service as well as service for any periods of previous employment that you bought back during your spousal relationship.

No. Under the Income Tax Act, you cannot buy back any portion of your pension that is paid to your former spouse by OPTrust.

No. Dividing your pension will not reduce the years of pension service that are used to determine if you are eligible for one of the OPSEU Pension Plan’s early unreduced retirement options.

No. Dividing your pension will not reduce the years of pension service that are used to determine if you qualify for post-retirement insured benefits, which are provided by the Government of Ontario.

If your separation occurs after you retire and before you reach age 65, then your former spouse’s share of your divided pension will include a portion of both your lifetime pension and your temporary “bridge benefit,” which is payable until you reach age 65. Once you turn 65, the bridge benefit ends, and both your pension and the pension paid to your former spouse will be reduced accordingly.

This depends on whether your spousal relationship ends before or after you retire. If you separate or divorce before you retire, your former spouse will not be eligible for a survivor pension from the OPSEU Pension Plan when you die.

If you separate from your spouse after you retire and start receiving your pension, your former spouse’s monthly payments for their share of your divided pension will stop when you die and they will be eligible to receive a survivor pension from OPTrust, unless they waived the right to a survivor pension.

Yes. Your former spouse may choose to waive their right to a survivor pension after your retirement. In this case, if applicable, any survivor benefits would be payable to your designated beneficiaries or to your estate. To waive the survivor pension, you and your former spouse must submit a completed FSRA Post-retirement Waiver of Survivor Pension After Separation (Optional Family Law Form FL-8) to OPTrust.

If you separate or divorce before you retire and start receiving a pension, your former spouse will not be eligible for post-retirement insured benefits provided by the Government of Ontario. If you separate or divorce after you retire and start receiving your pension, your former spouse may qualify for post-retirement insured benefits after you die if they are also eligible to receive a survivor pension.

The family law rules for dividing a pension described in this Good to Know and FAQs apply only to couples whose settlement instrument (i.e., domestic contract, court order or family law arbitration award) was finalized on or after January 1, 2012. If you are a party to a settlement instrument dated before January 1, 2012 that addressed your pension assets, then Ontario’s previous rules for dividing pension assets apply to you.