Vol. 137, No. 17 — August 13, 2003

Registration
SI/2003-143 13 August, 2003

JUDGES ACT

Order Amending the Judges Act (Removal Allowance) Order

P.C. 2003-1128 24 July, 2003

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 40 (see footnote a)  of the Judges Act, hereby makes the annexed Order Amending the Judges Act (Removal Allowance) Order.

ORDER AMENDING THE JUDGES ACT (REMOVAL ALLOWANCE) ORDER

AMENDMENTS

1. The long title of the Judges Act (Removal Allowance) Order (see footnote 1)  is replaced by the following:

JUDGES ACT (REMOVAL ALLOWANCE) ORDER

2. Section 1 of the Order and the heading before it are revoked.

3. The definitions "former residence" and "new residence" in section 2 of the Order are replaced by the following:

"former residence" of a judge means the residence that a judge had immediately before that judge was required to change the judge's place of residence to assume or perform the functions or duties of a judge, or, in the case of the judge's retirement, resignation or death, the residence at the place or in the area where the judge was required to reside to assume or perform the judge's function or duties as a judge; (ancienne résidence)

"new residence" of a judge means the residence at the place or in the area where a judge is required to reside to assume or perform the judge's functions and duties as a judge, or the residence to which the judge or the judge's survivor or child chooses to move within two years of the judge's retirement, resignation or death. (nouvelle résidence)

4. Section 3 (see footnote 2)  of the Order is replaced by the following:

3. (1) For the purpose of subsection 40(2) of the Act, the following expenses are hereby prescribed to be the kinds of moving and other expenses for which a removal allowance shall be paid under section 40 of the Act:

(a) travelling costs, including amounts expended for meals and lodging, incurred in the course of moving the judge, a member of the judge's household, or the judge's survivor or child, from the former residence to the new residence;

(b) costs incurred in transporting or storing household effects of the judge, a member of the judge's household, or the judge's survivor or child in the course of moving from the former residence to the new residence;

(c) amounts expended for meals and lodging for a member of the judge's household or the judge's survivor or child during any temporary stay near the former residence or the new residence, not exceeding in the aggregate 30 days, or such longer period the Minister of Justice determines, taking into account market conditions and the special needs of the family;

(d) the cost of cancelling any lease of the former residence;

(e) the selling costs incurred in respect of the sale of the former residence;

(f) the cost of legal services in respect of the purchase of the new residence and of any taxes imposed on the transfer or registration of title to the new residence;

(g) child-care expenses incurred while the judge and the judge's spouse or common-law partner, or the judge's survivor are away looking for a new residence;

(h) where the interest charges on the mortgage for the new residence are higher than the interest charges on the mortgage for the former residence, the difference between those charges up to a maximum of $5,000 per year for a maximum of five years;

(i) the cost of a mortgage default insurance premium and of an insurance processing fee where

(i) the judge, the judge's spouse or common-law partner, or the judge and the judge's spouse or common-law partner, or the survivor or child, or the estate or succession of the judge owned the former residence,
(ii) the equity of the judge, the judge's spouse or common-law partner, or the judge and the judge's spouse or common-law partner, or the survivor or child, or the estate or succession on their behalf, in the former residence is transferred to the new residence,
(iii) the equity of the judge, the judge's spouse or common-law partner, or the judge and the judge's spouse or common-law partner, or the survivor in the new residence is less than 25 per cent of the cost of the new residence, and
(iv) the premium is levied in one payment;

(j) the cost to the judge or the judge's spouse, common-law partner, survivor or child of maintaining the former residence, minus any rent received in respect of it, for a period of not more than six months after the date the judge vacates the residence, including amounts expended for mortgage interest payments, insurance, property taxes and heating; and

(k) where a judge is required to move to a new place of residence on appointment or transfer, the travelling and lodging costs, including amounts expended for meals, incurred by the judge before the establishment of the permanent new residence or in order to visit from time to time members of the judge's household still resident in the former residence, within the six-month period after the judge's appointment or transfer.

(2) Where, on account of unfavourable conditions in the real estate market, the judge's former residence cannot be sold within the six month period referred to in paragraph (1)(j) or (k), the Governor in Council may prescribe such an additional period as is reasonable in the circumstances.

5. (1) Subsection 3.1(1) (see footnote 3)  of the Order is replaced by the following:

3.1 (1) For the purpose of subsection 40(2) of the Act, where a judge or a judge's survivor or child is entitled to a removal allowance under section 40 of the Act, the interest on any short term demand loan with a financial institution to purchase a new residence and any legal fees related to that loan are hereby prescribed to be an expense for which a removal allowance shall be paid, if the loan has been arranged by

(a) the judge;

(b) the judge and the judge's spouse or common-law partner;

(c) the judge's spouse or common-law partner; or

(d) in the case where the judge is deceased, the judge's survivor or child.

(2) The portion of subsection 3.1(2) (see footnote 4)  of the French version of the Order before paragraph (a) is replaced by the following:

(2) Le versement d'une allocation de déménagement au titre du paragraphe (1) est assujetti aux conditions suivantes :

(3) Paragraph 3.1(2)(a) (see footnote 5)  of the Order is replaced by the following:

(a) at the time the loan referred to in subsection (1) is arranged, the judge or the judge's spouse, common-law partner, survivor or child, or the estate or succession of the judge, is the owner of the former residence or the judge is an owner with the judge's spouse or common-law partner of the former residence;

(4) Subparagraph 3.1(2)(c)(i) (see footnote 6)  of the Order is replaced by the following:

(i) the purchase by the judge, the judge's spouse, common-law partner, survivor or child of a new residence or the joint purchase by the judge and the judge's spouse or common-law partner of a new residence, and

(5) Subsection 3.1(4) (see footnote 7)  of the French version of the Order is replaced by the following:

(4) Sous réserve du paragraphe (5), l'intérêt visé au paragraphe (1) cesse d'être couvert par l'allocation de déménagement dès l'expiration de l'un des délais suivants :

a) dix jours après la conclusion de la vente de l'ancienne résidence;

b) six mois après la date de l'emprunt.

(6) Subsection 3.1(5) (see footnote 8)  of the Order is replaced by the following:

(5) Where, on account of unfavourable conditions in the real estate market, a judge or a judge's survivor or child who is entitled to a removal allowance under section 40 of the Act has not been able to sell the former residence within the six-month period referred to in paragraph (4)(b), the Governor in Council may prescribe any additional period that is reasonable in the circumstances in respect of which a removal allowance shall be paid pursuant to subsection (1).

6. (1) Subsection 3.2(2) of the Order is replaced by the following:

(2) For the purposes of subsection 40(2) of the Act, and subject to this section, where a judge or a judge's spouse or common-law partner, survivor or child, or the estate or succession on their behalf, is unable to sell the judge's former residence at a price that is equal to or greater than the fair market value, determined in accordance with this section, the difference between the sale price of the former residence and its fair market value is hereby prescribed to be an expense for which a removal allowance shall be paid under section 40 of the Act.

(2) Subsection 3.2(4) of the Order is replaced by the following:

(4) In order to determine the fair market value of the former residence, at the request of the person, estate or succession referred to in subsection (2), two appraisers shall be appointed, one by that person or that estate or succession, and one by the Minister of Justice, each to carry out a market appraisal to submit to the Minister and to that person or estate or succession an appraisal report of the former residence.

(3) Paragraph 3.2(5)(b) of the Order is replaced by the following:

(b) more than five per cent of the higher market appraisal, another appraiser shall be appointed by the Minister of Justice to carry out a third market appraisal and to submit to the Minister of Justice and to the person, estate or succession referred to in subsection (2) an appraisal report of the former residence.

(4) Subsections 3.2(7) to (9) of the Order are replaced by the following:

(7) When the fair market value of the former residence has been determined in accordance with this section, the Minister of Justice shall, in writing, advise thereof the person, estate or succession referred to in subsection (2).

(8) No removal allowance shall be paid to a person, estate or succession referred to in subsection (2) where the former residence is not sold within six months after the day on which they receive written notice from the Minister of Justice advising of the fair market value of the former residence.

(9) Where, on account of unfavourable conditions in the real estate market, a person, estate or succession referred to in subsection (2) who is entitled to a removal allowance under section 40 of the Act has not been able to sell the former residence within the six-month period referred to in subsection (8), the Governor in Council may prescribe such additional period as is reasonable in the circumstances in respect of which they may sell the former residence and be eligible to receive a removal allowance pursuant to subsection (2).

7. Section 4 of the Order is replaced by the following:

4. A judge, judge's survivor or child who makes a claim for the payment of a removal allowance under section 40 of the Act shall provide the Minister of Justice with receipts evidencing the expenses in respect of which the claim is made and any other documents that the Minister may require to enable the Minister to authorize the payment of the claim under section 5.

8. (1) The portion of section 5 of the Order before paragraph (a) is replaced by the following:

5. The Minister of Justice shall authorize the payment of a claim for a removal allowance where the Minister receives the claim and is satisfied that the expenses in respect of which the claim is made

(2) Paragraph 5(b) of the Order is replaced by the following:

(b) have actually been incurred by the judge, a member of the judge's household, or the judge's survivor or child;

(3) The portion of section 5 of the Order after paragraph (c) is replaced by the following:

(d) are not payable to the judge or the judge's survivor or child under any provision of the Act except section 40.

COMING INTO FORCE

9. This Order comes into force on the day on which it is made.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not a part of the Regulations.)

Description

The Order Amending the Judges Act (Removal Allowance) Order is made pursuant to section 40 of the Judges Act. This section sets out the entitlement of a judge and his surviving spouse, common-law partner, or child to a removal allowance where the judge is required to move as a result of appointment, or the judge's survivors wish to move following the judge's death. The Removal Allowance Order sets out the prescribed kinds of expenses that will be paid as part of the removal allowance, as well as the conditions that apply to home sale assistance.

Purpose of the Amendments

The primary purpose of the amendments is to ensure equal treatment under the law for common-law opposite-sex and common-law same-sex partners, resulting in the addition of the terms "common-law partner" and "survivor". Some editorial amendments have also been included to clarify and update the language in the order, for example, by providing gender-neutral language.

Modernizing Benefits and Obligations

The regulations affect the surviving spouse, common-law partner, and children of qualifying individuals as they too are entitled to a removal allowance should they wish to move to another place of residence within two years after the death of the judge. The amendments are required in light of the need to carry into effect the provisions of the Modernizing of Benefits and Obligations Act (Bill C-23). Bill C-23 amended 68 federal statutes to extend benefits and obligations to common-law same-sex partners on the same basis as common-law opposite-sex partners, while maintaining the clear legal distinction between married and unmarried relationships.

The changes will have little impact on most Canadians. Those affected will be individuals in common-law partnerships, defined as two persons who are cohabiting in a conjugal relationship, having so cohabited for a period of at least one year.

Alternatives

Not including common-law partners would be inconsistent with the Canadian Charter of Rights and Freedoms and the federal approach in Bill C-23.

Benefits and Costs

Extending equal treatment under the law to common-law partners is not expected to add significantly to the costs of the order.

Consultation

The amendments to the Judges Act made pursuant to Bill C-23 were put before the Judicial Compensation and Benefits Commission for its consideration. The Commission supported the amendments, stating that they were an important, timely and appropriate response to the issues concerning survivor benefits.

This Regulation was pre-published in the Canada Gazette, Part I, on March 16, 2002 and no comments were received.

Contact

Yan Leduc
Counsel
Judicial Affairs, Courts and Tribunal Policy
Department of Justice
Telephone: (613) 946-8923

Footnote a 

S.C. 2000, c. 12, s. 160

Footnote 1 

C.R.C., c. 984

Footnote 2 

SI/91-16

Footnote 3 

SI/83-46

Footnote 4 

SI/79-130

Footnote 5 

SI/79-130

Footnote 6 

SI/79-130

Footnote 7 

SI/83-46

Footnote 8 

SI/83-46

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