(4) In determining whether to order the immediate transfer of a lump
sum out of a pension plan and in determining the amount to be transferred,
the court may consider the following matters and such other matters as the
court considers appropriate:
1. The nature of the assets available to each spouse at the time of
2. The proportion of a spouse’s net family property that consists of
the imputed value, for family law purposes, of his or her interest
in the pension plan.
3. The liquidity of the lump sum in the hands of the spouse to whom
it would be transferred.
4. Any contingent tax liabilities in respect of the lump sum that
would be transferred.
5. The resources available to each spouse to meet his or her needs in
retirement and the desirability of maintaining those resources.
(5) If payment of the first instalment of a spouse’s pension under a pension
plan is due on or before the valuation date, an order made under section 9 or
10 may provide for the division of pension payments but not for any other
division of the spouse’s interest in the plan.
 The appellant argues that the combined operation of
subsections (3) and (5) precludes a lump-sum division when a
pension is in pay. Some cases support this interpretation (see,
for example, Jovanovic v. Jovanovic,  O.J. No. 5250, 2013
ONSC 7132,  W.D.F.L. 461 (S.C.J.), at para. 40). However,
I would not read these provisions so restrictively, especially
without clear statutory language that prohibits a lump-sum
transfer when a pension is in pay.
 Subsection 10.1(3) creates a general power to order an
immediate lump-sum division. The availability of this permissive option is guided by the non-exhaustive criteria in subsection (4). Subsection (5) addresses pensions in pay. In these
circumstances, a judge may make an order for the division of
pension payments, “but not for any other division of the spouse’s
interest in the plan” (emphasis added). I do not read this section
as prohibiting a lump-sum transfer for a pension in pay. Instead,
s. 10.1(5) simply provides courts with another option — division
of payments. However, just like s. 10.1(3), s. 10.1(5) only allows
a judge to order one form of division — lump-sum or pension
payments — not both, and not any other form of division of
 The combined operation of s. 10.1(3) and (5) leads to the
following options. Before a pension is in pay, only a lump-sum
division is available. This makes sense because there is no
monthly payment stream to divide. Once a pension is in pay,