SOCIAL SECURITY TRIBUNAL DECISION General Division Income Security

[TRANSLATION] Citation: P. S. v. Minister of Employment and Social Development, 2015 SSTGDIS 11 Appeal No: GT-113256 BETWEEN: P. S. Applicant and Minister of Employment and Social Development (Formerly Minister of Human Resources and Skills Development) Respondent SOCIAL SECURITY TRIBUNAL DECISION General Division Income Security SOCIAL SECURITY TRIBUNAL MEMBER: Shane Parker DATE OF HEARING: January 14, 2015 TYPE OF HEARING: Teleconference DATE OF DECISION: February 18, 2015

PERSONS IN ATTENDANCE S. M., for the Appellant s estate DECISION [1] The Tribunal finds that the Appellant was in a common-law relationship from November 1985 to August 2009. INTRODUCTION [2] The Appellant applied under the Old Age Security Act (the OAS Act) for a Guaranteed Income Supplement (GIS) as a widow. The GIS payment was approved since the Appellant stated that her marital status was single. The Respondent later determined that the Appellant received a GIS benefit overpayment for the period from July 2000 to August 2009 because she had started cohabitating with someone in November 1985. The Respondent claimed the $26,517.29 overpayment from her. Following a request for reconsideration, and based on its reconsideration on November 4, 2010, the Respondent adjusted the overpayment for the period from September 2007 to August 2009 because of an involuntary separation as of August 2007. The statement of involuntary separation was received on June 21, 2010, and is found on page GT1-11. Consequently, the overpayment was reduced to $19,509.89 (GT1-6 and 7). On December 3, 2010, the Appellant filed an appeal with the Office of the Commissioner of Review Tribunals (OCRT) (GT1-2 to 4). [3] After the Notice of Appeal was filed, the Appellant died. The late Appellant s estate is pursuing her appeal (GT2). [4] This appeal was heard by teleconference for the reasons set out in the Notice of Hearing dated September 16, 2014.

ISSUE [5] The Tribunal must decide whether the Appellant was in a common-law relationship from July 2000 to August 2009. APPLICABLE LAW [6] Section 257 of the Jobs, Growth and Long-term Prosperity Act of 2012 stipulates that appeals filed with the OCRT before April 1, 2013, and not heard by the OCRT are deemed to have been filed with the General Division of the Social Security Tribunal. [7] Section 12 of the OAS Act states that the GIS amount payable to a common-law partner is lower than the amount paid to a single person: Amount of Supplement Amounts on April 1, 2005 12. (1) The amount of the supplement that may be paid to a pensioner for any month in the payment quarter commencing on April 1, 2005 is, (a) in the case of a person other than a person described in paragraph (b), five hundred and sixty-two dollars and ninety-three cents, and (b) in the case of a person who, on the day immediately before that payment quarter, had a spouse or common-law partner to whom a pension may be paid for any month in that payment quarter, (i) in respect of any month in that payment quarter before the first month for which a pension may be paid to the spouse or common-law partner, five hundred and sixty-two dollars and ninety-three cents, and (ii) in respect of any month in that payment quarter commencing with the first month for which a pension may be paid to the spouse or common-law partner, three hundred and sixty-six dollars and sixty-seven cents, minus one dollar for each full two dollars of the pensioner s monthly base income. [8] Subsection 15(1) of the OAS Act stipulates that every person by whom an application for a supplement in respect of a payment period is made shall, in the application, state whether the person has or had a spouse or common-law partner at any time during the payment period or in

the month before the first month of the payment period, and, if so, the name and address of the spouse or common-law partner and whether, to the person s knowledge, the spouse or common-law partner is a pensioner. [9] Subsection 15(9) of the OAS Act stipulates that every applicant shall inform the Minister without delay if they had a spouse or common-law partner at the beginning of a month, not having had a spouse or common-law partner at the beginning of the previous month. [10] Section 2 of the OAS Act defines common-law partner and Minister as follows: common-law partner, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year. For greater certainty, in the case of an individual s death, the relevant time means the time of the individual s death. Minister means the Minister of Human Resources and Skills Development. [11] Subsection 37(1) of the OAS Act concerns the return of an overpayment and reads as follows: EVIDENCE Return of benefit where recipient not entitled 37. (1) A person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be. [12] The Appellant applied for the Allowance for the Survivor on May 16, 1986 (GT1-18 and 19) and for an OAS pension on October 10, 1990 (GT1-20 to 23). The Appellant indicated her widow status (GT1-20). The Allowance and GIS payment were approved for a single person. [13] A cohabitation agreement between the Appellant and a Mr. A. D. established on July 14, 1986, indicates that they had been living together since November 1985. In addition, the agreement stipulates that the Appellant was entitled to live in Mr. D. s home, but that during the

cohabitation neither one was required to provide for the other. The Appellant was not entitled to Mr. D. s moveable property or real property (GT1-26 and 27). [14] According to the Appellant s statement of involuntary separation, she involuntarily separated from Mr. D. in August 2007 because he moved to Pinecrest Nursing Home, a residence providing nursing care for the elderly. She added that Mr. D. died in August 2009 (GT1-11). [15] According to her official Canada Pension Plan proof and common-law relationship proof for the province of Ontario, the Appellant stated that she lived in a conjugal relationship with Mr. D. for 24 consecutive years, from November 1985 to August 2009 (GT1-28). [16] Mr. D. s will indicates that the Appellant was his common-law partner (GT1-29). [17] The Appellant s tax returns as of 2001 indicate that she was a common-law partner (pages GT4-3 to 9). Ms. M. s testimony [18] Ms. M. is the Appellant s daughter. She saw the Appellant five or six times a year, every two months. She spoke to her on the telephone more often, approximately once a week. [19] Her testimony before the Tribunal was mostly vague and limited. She could not remember specific dates of relevant events. She was unable to confirm with certainty that the Appellant and Mr. D. lived under the same roof. However, she was more certain about the point that no other people lived with them. [20] Ms. M. assumed that the Appellant and Mr. D. had intimate relations. However, this subject was not raised in her discussions with the Appellant. Concerning their fidelity, Ms. M. never saw the Appellant or Mr. D. in a romantic relationship with anyone else. Her observations of their feelings were limited. She never saw them fight.

[21] Regarding their daily routine, Ms. M. saw the Appellant and Mr. D. doing certain things together when she visited them. They ate together. The Appellant prepared the meals. They sometimes went out together, but the Appellant went out alone when Mr. D. did not want to join her. Ms. M. did not know their shopping or cleaning habits. Apart from Christmas gifts, Ms. M. did not know whether the Appellant and Mr. D. bought gifts for each other. The Appellant and Mr. D. paid for their own things (such as clothing). Aside from that, Ms. M. did not know their financial arrangements. [22] The family members of the Appellant and Mr. D. rarely got together, but when the Appellant s family members were present, they got along well with Mr. D. According Ms. M., the Appellant s extended family (her brother and sister) considered them a couple. [23] Ms. M. confirmed that Mr. D. lived in a nursing home from July 2007 to August 2009. She did not know about any changes in their relationship during this period. When Mr. D. was living at Pinecrest (she had no idea when he was admitted), the Appellant visited him regularly. Ms. M. did not know how Mr. D. behaved toward the Appellant when she was sick. OBSERVATIONS [24] The Appellant stated that the overpayment should be divided between her and her former common-law partner (GT1-4). Her estate asked the Tribunal to completely cancel the overpayment since the Appellant and her partner were both deceased (GT4-1). The Appellant also stated the following: (a) She was not in a common-law relationship during the period in question. She simply shared a residence with Mr. D. (GT1-53); (b) She acted transparently by indicating her marital status to the Canada Revenue Agency (CRA) without delay.

[25] The Respondent stated that the Appellant met the definition of common-law partner in November 1985. Her GIS therefore had to be paid according to the rate established for married people, based on the couple s joint income. In addition: (a) The Appellant did not fulfill her duty to notify the Minister of her change in marital status from single person to common-law partner as soon as the change took place; (b) The Appellant erroneously received a higher GIS amount based on her single status for the period from July 2000 to August 2009; (c) The overpayment had to be repaid to the Minister. ANALYSIS [26] In this case, the Tribunal must look at whether the Appellant was in a common-law relationship according to the OAS Act and the relevant case law from July 2000 to August 2009. [27] In McLaughlin v. Canada (Attorney General), 2012 FC 556 (paragraph 15), the Federal Court listed the following factors as being indicative of a conjugal relationship: 1) Shelter, including considerations of whether the parties lived under the same roof, slept together, and whether anyone else occupied or shared the available accommodation; 2) Sexual and personal behaviour, including whether the parties have sexual relations, maintain an attitude of fidelity to each other, communicate on a personal level, eat together, assist each other with problems or during illness or buy each other gifts; 3) Services, including the roles they played in preparation of meals, doing laundry, shopping, conducting household maintenance and other domestic services; 4) Social, including whether they participated together or separately in neighbourhood and community activities and their relationship with respect to each other's family members; 5) Societal, including the attitude and conduct of the community towards each of them as a couple; 6) Support, including the financial arrangements between the parties for provision of necessaries and acquisition and ownership of property; and 7) Attitude and conduct concerning any children. [28] The Supreme Court of Canada confirmed, in the family law context, that these factors should be taken into account to determine whether the common-law partners are living in a

conjugal relationship. It stated in M v. H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, [1999] ACS no 23, in paragraph 59, that the generally accepted characteristics of a conjugal relationship [include] shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. [29] In this case, the balance of probabilities has established that the Appellant was in a common-law relationship from November 1985 to August 2009. The cohabitation agreement, the Canada Pension Plan and common-law relationship proof, the statements to the CRA, and Mr. D. s will support this finding. The documents show the clear intentions of the Appellant and Mr. D. regarding the nature of their relationship. Ms. M. s testimony confirmed that they were known as a couple in the eyes of the public and their family members. Aside from a clearly separate financial arrangement, the Appellant and Mr. D. met a number of criteria indicating a common-law relationship. [30] The Tribunal did not consider the involuntary separation in August 2007 to be an event that ended the common-law relationship. The fact that they did not live under the same roof is only one factor to consider in the analysis. Ms. M. testified that, during their involuntary separation from July 2007 to Mr. D. s death in August 2009, the Appellant regularly visited Mr. D. She added that apart from a different roof, their relationship stayed the same as during the previous period. [31] Following her GIS application, the Appellant did not notify the Minister of her common-law relationship without delay. The legislation is clear. The Appellant should have received the GIS amount issued based on her status as a common-law partner for the period from July 2000 to August 2009. Therefore, the Respondent is entitled to claim the overpayment for that period. [32] Regarding the argument that the Appellant informed the CRA of her marital status, the CRA is not the Minister according to the OAS Act. The OAS Act stipulates that the Appellant shall inform the Minister without delay. The OAS Act does not stipulate that she can rely on the CRA to fulfill this duty for her.

[33] The Tribunal acknowledges the Appellant s wish to divide the overpayment between her and Mr. D., and the request to cancel it completely. The Tribunal is created by legislation and, as such, it has only the powers granted to it by its governing statute. The Tribunal is required to interpret and apply the provisions as they are set out in the OAS Act. According to the facts in this case and the legislation, the overpayment is the Appellant s debt and she must repay it to the Respondent. In addition, the sharing of debts seems contrary to the intention indicated in the cohabitation agreement. CONCLUSION [34] The appeal is dismissed. Shane Parker Member, General Division