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Reasons and decision
Persons in attendance
J. C.: Appellant
G.T.: Added Party
S. C.: Appellant’s daughter
Introduction
[1] The Appellant received the Canada Pension Plan (CPP) disabled contributor’s child benefit (DCCB) with respect to his daughter S. C. for the period August 2010 to December 2013. On February 20, 2014 the Respondent determined that the Appellant was not entitled to receive these benefits and demanded return of an overpayment in the amount of $9,135.61.
[2] The Respondent maintained its positon on reconsideration and the Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal) on April 10, 2014.
[3] The hearing of this appeal was by Teleconference for the following reasons:
- There are gaps in the information in the file and/or a need for clarification; and,
- This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
The law
[4] Section 44 (1) of the CPP provides that a disabled contributor’s child benefit shall be paid to each child of a disabled contributor subject to certain conditions.
[5] Section 42 (1) of the CPP defines a child of a contributor to include a natural child of the contributor, a child who was legally adopted, or adopted in fact by a contributor while the child was under 21, or a child of whom, either legally or in fact, the contributor had custody and control before the child was 21 years old.
[6] Section 75 of the CPP provides that when a disabled contributor’s child benefit is payable to the child of a disabled contributor the payment shall be made to the person having custody and control of the child if the child has not reached the age of 18 years.
Issue
[7] The issue to be determined is whether the Appellant was entitled to the DCCB that he received with respect to his daughter S. C.
Undisputed Relevant Facts
[8] The Appellant and the late M. T. (M.) were married on December 31, 1992.
[9] Their daughter S. C. was born on X X, X.
[10] The Appellant and M. T. divorced on May 17, 2001. The divorce judgment provides that they are to have joint custody of S. C. and that her primary residence is to be with M. T. The divorce judgment also provides for times when the S. C. is to be in the Appellant’s care and control including alternate weekends, weekday times at least once a week as the parties may agree, and two weeks of holiday and vacation.
[11] The Appellant successfully applied for CPP disability benefits in July 2010 and commenced receiving DCCB for S. C. as of August 2010. He received these benefits until December 2013, when S. C. turned 18.
[12] In January 2014 S. C. contacted Service Canada enquiring about the DCCB. She advised that she has been in the custody and care of her mother since she was three, and that she has not resided with her father since then.
[13] In February 2014 M. T. applied for the DCCB with respect to S. C. In the application she stated that she wasn’t aware of this benefit until her daughter started to receive it; that she has been S. C.’s primary care giver since she and her former husband separated in September 1999; and that S. C. has always lived with her on a full time basis.
[14] On February 20, 2014 the Respondent wrote to the Appellant advising that it had recently received information that S. C. was not in his personal care and custody since May 2001, and that he was not entitled to the DCCB benefits paid on her behalf because her primary residence was not with him. The Respondent advised that the Appellant had been overpaid by $9,135.61 for the period August 2010 to December 2013, and that this amount would be recoverd by deducting $253.77 from his monthly disability payment.
[15] The Appellant requested a reconsideration on February 28, 2014.
[16] On March 5, 2014 the Respondent approved M. T.’s application with the effective benefit period August 2010 to December 2013. M. T. received payment of $9,135.61.
[17] On March 27, 2014 the Respondent maintained its decision on reconsideration, and the Appellant has appealed the reconsideration decision to the Social Security Tribunal.
[18] M. T. passed away on July 29, 2015 and the Added Party has been appointed executor of her estate.
Oral evidence
[19] In his oral evidence the Appellant advised that when he was completing his CPP disability application, he spoke to someone at Service Canada to obtain clarification of the divorce judgment which provides that he has joint custody of S. C. He was advised that when completing box 10 he should answer yes since according to the divorce judgment he had joint custody of S. C. He was also advised that he should not complete box 11 since he had answered yes in box 10.
[20] The Appellant acknowledged that M. T. had always been S. C.’s primary caregiver and that S. C.’s primary residence had always been with her mother. He stated that there was no question that S. C. was raised by her mother, and that M. T. made all of the decisions and arrangements with respect to her schooling, medical appointments, activities etc.
[21] He stated that he acted in good faith, that answering differently on his CPP disability application would have been a lie, and that he gave his best answer based on the counselling he received from Service Canada. He also stated that he believes the DCCB was available to him (a disabled person) since he incurred expenses for S. C. such as a dedicated bedroom, even though her primary residence was with her mother and she may not have spent as much time with him as contemplated by the court order.
[22] S. C. testified that she always lived with her mother. She initially went to her father’s home every second weekend and on some holidays. Her mother arranged all of her appointment and activities. She also stated that she started to see her father less frequently after July 2011.
Submissions
[23] The Appellant stated that the application form is the main problem, since the wording is misleading because it mentions custody (and he had joint custody under the divorce judgment) and not care and control. He followed his best judgment and wasn’t trying to cheat anyone. He also emphasized that the didn’t want his former wife’s estate or his daughter to be affected by the decision.
[24] The Added Party submitted that M. T. was always S. C.’s primary caregiver and that her primary residence was always with her mother. The Added Party also indicated that the Appellant should have completed box 11 of the Application, which would have resulted in matters being clarified from the beginning.
[25] The Respondent submitted that M. T. was the person eligible to receive the DCCB because S. C. had been in her custody and care since she was three.
Analysis
[26] S. 75 of the CPP provides that for a child under 18 the DCCB is to be made to “the person having custody and control” of the child. Although the divorce judgment provides that the Appellant is to have joint custody of S. C., it also provides that her primary residence was to be with her mother and that she would only be with her father on alternate weekends, once a week on weekdays (as may be agreed), and on holidays and vacations for two weeks. The Appellant has acknowledged that S. C. was raised by her mother, and that her mother made all of the decisions and arrangements with respect to her schooling, medical appointments, activities etc.
[27] Although the divorce judgment provides for joint custody, the CPP does not permit payment of the DCCB to more than one person since the s. 75 is written in the singular (see MSD v Berendt (November 29, 2006) CP24719 (PAB). S. C.’s primary residence was with her mother and it is clear that M. T. is the parent who had “custody and control.”
[28] The Appellant has submitted that he acted in good faith when completing the CPP disability application and that he relied on erroneous advice given to him by Service Canada. However, s. 66 (4) of the CPP provides that where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of the Act, any person has been denied a benefit, or portion thereof, to which that person would have been entitled under the Act, the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made. The Tribunal has no jurisdiction to deal with this issue. Only the Minister and the Federal Court (if the Appellant pursues an appeal of the Minister’s decision) have such jurisdiction: Pincombe v. AG Canada [1995] F.C.J 1320.
[29] The Tribunal is bound by the CPP provisions. It is not empowered to exercise any form of equitable power in respect of the appeals coming before it. It is a statutory decision-maker and is required to interpret and apply the provisions as they are set out in the CPP: MSD v Kendall (June 7, 2004), CP 21690 (PAB). The Tribunal has no authority to make exceptions to the provisions of the CPP nor can it render decisions on the basis of fairness, compassion, or extenuating circumstances.
Conclusion
[30] The Tribunal finds that the Appellant is not entitled to the DCCB that he received with respect to his daughter S. C. for the period August 2010 to December 2013.
[31] The appeal is dismissed.