Other Canada Pension Plan (CPP)

Reasons and decision

Introduction

[1] The Respondent received the Appellant’s application for a Canada Pension Plan (CPP) survivor’s pension on December 1, 2015. The Respondent denied the application based on the fact that under the CPP, a survivor must be a person who was residing with the contributor in a conjugal relationship for at last one year before his or her death.

Issue

[2] The Tribunal must decide whether the appeal should be summarily dismissed.

The law

[3] Subsection 53(1) of the Department of Employment and Social Development Act (DESD Act) states that the General Division must summarily dismiss an appeal if satisfied that it has no reasonable chance of success.

[4] Section 22 of the Social Security Tribunal Regulations (SST Regulations) states that before summarily dismissing an appeal, the General Division must give notice in writing to the Appellant and allow the Appellant a reasonable period of time to make submissions.

[5] Paragraph 44(1)(d) of the Canada Pension Plan (CPP) provides for the payment of a survivor’s pension to the survivor of a deceased contributor. Subsection 42(1) of the CPP provides the definition of a “survivor” as follows:

“survivor” in relation to a deceased contributor, means

(a)  if there is no person described in paragraph (b), a person who was married to the contributor at the time of the contributor’s death, or

(b)  a person who was the common-law partner of the contributor at the time of the contributor’s death.

[6] Under section 2 of the CPP, “common-law partner” is defined as follows:

“common-law partner”, in relation to a contributor, means a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year. For greater certainty, in the case of a contributor’s death, the “relevant time” means the time of the contributor’s death (emphasis added).

Evidence

[7] The Appellant and the deceased contributor were sisters. They lived together at the same residence for the past 15 years until the deceased contributor died.

[8] The Appellant was the primary care giver for the deceased contributor who required 24 hour care.

[9] In the application by the deceased contributor’s personal representative (not the Appellant) for a grant of probate, the personal representative noted that from 1999 until her death in October 2015, the deceased contributor was disabled and required 24 hour supervision. The Appellant, the deceased contributor’s sister, lived with the deceased contributor from 1999 until her death and provided all care and companionship, including health and personal care, cooking, shopping, housekeeping and maintenance of the home without remuneration. The deceased contributor provided for all of their living expenses. For the final seven years of the deceased contributor’s life, no one else lived with the deceased contributor and the Appellant.

[10] The deceased contributor and Appellant did not enter into a written adult interdependent partner agreement under Alberta’s provincial Adult Interdependent Relationship Act. However, they had an oral partnership agreement and were in an “interdependent” relationship as evidenced by their conduct. The personal representative did not elaborate upon the term “interdependent” but appeared to reference this term as it is used under the Adult Interdependent Relationship Act.

Submissions

[11] In compliance with section 22 of the SST Regulations, the Appellant was given notice in writing of the intent to summarily dismiss the appeal and was allowed a reasonable period of time to make submissions. The Tribunal did not receive any additional submissions from the Appellant.

[12] In her Notice of Appeal, the Appellant asserted that she and the deceased contributor were common law partners as defined under federal law and that they met the definition of “interdependent partners” under Alberta law. She explained that since 1999, she provided home care for the contributor not as a professional employee but as a caring, loving partner.

[13] The Respondent submitted that:

1. Under the CPP, a survivor must be a person who was residing with the contributor in a conjugal relationship, continuously for at last one year before his or her death.
2. The Appellant and deceased contributor were sisters who lived together at the same residence for the past 15 years until the deceased contributor passed away. The Appellant was the primary caregiver for her disabled sister, the deceased contributor, who required 24 hour care.
3. The Appellant does not meet the definition of a common law survivor under subsection 42(1) of the CPP. Cohabitating in a conjugal relationship implies a commitment of both individuals to live in a marriage-like state, thereby assuming those marital rights, duties and obligations typically applied to married couples.
4. In reliance of its position, the Respondent referred to the case of Hunsigner v. MHRD (December 16, 2002), CP18406 (PAB) which outlined the elements of a common-law relationship as follows:

   There must have been a conjugal relationship for a claimant to be entitled to receive survivor’s benefits. The fact that the claimant had lived with and taken care of her father and her contributor sister, who was not well, until their respective deaths did not mean that she qualified as a “survivor” under the CPP.

Analysis

[14] The Tribunal notes that a common-law partnership entails cohabitation between two parties in a conjugal relationship.

[15] A conjugal relationship entails living together in a marriage like relationship outside marriage.

[16] As the Appellant and deceased contributors could not, by virtue of their sibling relationship, cohabit in a conjugal relationship, (as opposed to a non-conjugal interdependent adult relationship which is recognized under the law in Alberta), the Appellant was not in a common law relationship as defined under the CPP, which requires a conjugal relationship.

[17] Although the Hunsigner case, a decision of the former Pension Appeals Board, is not binding upon the Tribunal, the Tribunal finds its reasoning persuasive. The fact the Appellant lived with and took care of her contributor sister, who was disabled and required 24 hour supervision, does not mean that the Appellant qualified as a “survivor” under the CPP. More fundamentally, the relationship between the Appellant and deceased contributor was sibling and therefore by its very nature was not conjugal.

[18] Accordingly, the Tribunal finds that the Appellant’s position on appeal that she is entitled to receive the CPP survivor’s benefits has no reasonable chance of success.

Conclusion

[19] The appeal is summarily dismissed.