Other Canada Pension Plan (CPP)

Decision

I find that the Appellant is not entitled to a Canada Pension Plan (CPP) survivor’s pension for the reasons set out below.

Overview

[1] The Minister received the Appellant’s application for a CPP survivor’s pension on December 8, 2016.^{Footnote 1} The Appellant maintained that she was married to the deceased (contributor). The Added Party also applied for a survivor’s pension on November 1, 2016, before the Appellant. In her application, she indicated that she was the contributor’s common‑law partner. Her application was approved on March 28, 2017. The Minister denied the Appellant’s application initially and upon reconsideration. The Appellant appealed the reconsideration decision to the Social Security Tribunal.

Analysis

i. Applicable CPP provisions

[2] The CPP^{Footnote 2} sets out that a survivor’s pension must be paid to the survivor of a deceased contributor who has made contributions for not less than the minimum qualifying period, subject to the survivor meeting certain conditions.

[3] A survivor,^{Footnote 3} in relation to a deceased contributor, means a person who was the common‑law partner of the contributor at the time of the contributor’s death or, if there is no eligible common-law partner, a person who was married to the contributor at the time of the contributor’s death.

[4] A 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. In the case of a contributor’s death, the “relevant time” means the time of the contributor’s death.

ii. Appellant’s documentary evidence

[5] According to the Appellant’s application for a survivor’s pension, she married the contributor on August 17, 1968.^{Footnote 4} She indicated that the contributor passed away on September 24, 2016. He had an address in Spain, and she, in France.

[6] The death certificate^{Footnote 5} indicates that the contributor died in X, and that he was domiciled in Spain.

[7] The Appellant submitted numerous documents dating from May 30, 2002, to September 24, 2016, the date of the contributor’s death, to show that he was living with her and that the contributor’s address in Spain was where he had worked until 2016.

[8] According to the Appellant, the contributor left Spain on September 23, 2016, to go to the apartment of their eldest daughter in X, where he was to do some work.

[9] The Appellant indicates that the contributor worked and lived in Canada, specifically in Mississauga, Ontario, from 2000 to 2002. She submitted a statement of participation in the Québec Pension Plan for 2002.

[10] The evidence indicates that, on August 21, 2002,^{Footnote 6} the contributor certified in writing that the Appellant worked for him as a secretary and was his spouse.

[11] On January 23, 2009, the contributor’s insurer informed him in a letter^{Footnote 7} that, because of his move to Spain, he could not remain insured with them, since he no longer lived in France.

[12] On November 4, 2010,^{Footnote 8} the contributor signed a document giving the Appellant signing authority for a house in France that they both owned but were renting out. In the document, the contributor indicated that he lived in Mississauga, Ontario, and the Appellant, in France. The property taxes for 2012 and 2013^{Footnote 9} for the rented house were sent to the contributor at the Appellant’s address.

[13] The Appellant also submitted into evidence a notary’s certificate from 2012, a 2012 letter from France’s Direction des finances [finance directorate], a 2013 letter of restitution from a notary, a 2013 tax notice, and statements pending proceedings dated between 2014 and 2016. Most of these documents were sent to the contributor at the Appellant’s address.^{Footnote 10} They seem to be related to the house that the Appellant and contributor owned but were renting out. The statements pending proceedings indicate that the contributor was single.^{Footnote 11}

[14] In response to questions I had sent to the Appellant because she had chosen this method of proceeding, she replied that, since August 17, 1968, she had lived with the contributor for 48 years, the first 15 of which were spent in Quebec. They had always lived together. In 2009, he had to get an apartment in Spain, where his business was located, for practical and tax reasons. The Appellant says that this was by no means a separation. They had to sell a house in France whose tenant was not paying rent when they had a home loan to pay back, which forced them to generate an overleverage file for debts she is still paying back because they were married under the community of property regime. They never stopped living together, and the contributor continued to do business with Quebec and Ontario, where he went regularly. On the day he died, he was supposed to come home because he had some work to do in the home of their eldest daughter in  X. She was on a month-long stay with friends in Quebec when her children informed her of the contributor’s death.

[15] She also says that they always attended social and family events together with their children and that the contributor had a large family. They shared daily expenses, and when unable to return to France for a while, he would send her cheques or make bank transfers. Given that they were experiencing significant financial difficulties, they were content with spending all their vacations at home with the children because the Appellant lives in a touristic area 5 km from the sea. She indicated that the contributor was a sailing enthusiast. Their family and friends viewed them as a normal couple, and his sudden passing came as a shock to everyone, as he was thought to be in perfect health.

[16] According to the evidence,^{Footnote 12} the Appellant and her children are the contributor’s heirs.

iii. Documentary evidence of the added party

[17] Following the contributor’s death on September 24, 2016, the Added Party applied for a survivor’s pension on November 1, 2016. In her application, she indicated that she was the contributor’s common-law partner. A statutory declaration included with the application indicates that she and the contributor started living together in a common-law relationship on January 1, 2000, and that they lived together until the contributor’s death.

[18] According to the evidence, the contributor’s Old Age Security application^{Footnote 13} signed on August 11, 2012, indicates that he lived in Spain from February 2003 to July 2012 and that he worked in Spain in that same period. He provided the Added Party’s address in X as his address at the time of the application. He selected “Separated” in the “Marital Status” section and named the Added Party as his common-law partner.

[19] On January 14, 2014, the mayor of X^{Footnote 14} certified that the contributor, domiciled in X, had come to City Hall.

[20] The Added Party also submitted into evidence the following documents, which were sent to the contributor at the Added Party’s address:

• A certificate of incorporation from 2003 between the contributor and the Added Party;^{Footnote 15}
• A postcard from 2004 from the contributor’s eldest sister (A.);^{Footnote 16}
• Documents concerning the contributor’s pension contributions dated September 2011, February 2012, October 2012, December 2012, January 2013, January 2014, June 2014, and December 2014, sent to the Added Party’s address;^{Footnote 17}
• A statement of treatment from a Dr. Egloff dated January 31, 2014, for cardiovascular care provided to the contributor;^{Footnote 18}
• An invitation from 2015 from one of the contributor’s sisters (M.) for her 70^th birthday;^{Footnote 19}
• A statement of change in situation^{Footnote 20} signed by the contributor on November 2, 2015, addressed to the home of the Added Party and indicating that the contributor was retired, that his current address was that of the Added Party, that his previous address was in Spain, and that he was an employee from February 2003 to October 2015;
• A payment statement for a supplemental pension^{Footnote 21} dated April 18, 2016, sent to the contributor at the Added Party’s address;
• An invitation from 2016 from the contributor’s eldest sister for her 80^th birthday;^{Footnote 22} and
• A card from 2018 from the contributor’s grandson (N. B.) (envelope with sender, recipient, and postmark) and vacation photos of the contributor’s grandchildren (N. and T.) with the caption [translation] “at Grandpa P. and Grandma M.’s place.”^{Footnote 23}

[21] She gave the following explanations^{Footnote 24} regarding the contributor’s apartment in Spain, their family life, family events, the payment of expenses alleged by the Appellant, and the scattering of the contributor’s ashes:

• Apartment in Spain: In January 2003, they formed a company (certificate attached^{Footnote 25}) in which the Added Party held most of the shares. The contributor worked in X, Spain, and would retire to the Added Party’s home, located 40 km from X. According to the Added Party, the contributor did not travel to Quebec or Ontario as the Appellant alleges.
• Family life: From 2000 on, the contributor received his children in the Added Party’s home. His daughter S., who lived 150 km away, visited them regularly, as did his daughter V. In August 2016, she vacationed at their home for a week with her boyfriend, A. His son M., every August without exception, had visited her with his children T. and N. (photo attached^{Footnote 26}), even after the contributor’s death (2018 card from N.^{Footnote 27}).
• Family events: In addition to the children, the contributor’s whole family recognized the contributor and the Added Party (2015 card from his sister M., invitation from M. for her 70^th birthday, and invitation from 2016 from his eldest sister, A., for her 80th birthday^{Footnote 28}).
• Cheques and bank transfers: The Added Party had looked at all the contributor’s statements of his personal account since 2014 and had found no evidence of debits in favour of the Appellant.
• contributor’s health: A statement of treatment concerning an exam performed by a cardiologist in 2014.
• Scattering of ashes: The Appellant did not attend the contributor’s funeral. The Added Party accommodated his four children and made sure to give them some of their father’s ashes so that they could scatter them with the Appellant.

iv. Survivor / spouse / common-law relationship

[22] The Appellant must prove on a balance of probabilities that she was the survivor of the contributor at the time of his death.

[23] As mentioned, a survivor, in relation to a deceased contributor, means a person who was the common-law partner of the contributor at the time of the contributor’s death or, if there is no eligible common-law partner, a person who was married to the contributor at the time of the contributor’s death.

[24] A 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.

[25] The case law^{Footnote 29} has established that the factors that are indicative of a common-law relationship with cohabitation between the parties are as follows: Continued financial interdependence, a sexual relationship, a common residence, expenses for each other on special occasions, a sharing of responsibilities in running the household, a shared use of assets, shared vacations, who cared for each person when ill, communication between the parties, public recognition of the relationship, what status was declared by the parties on various applications and other forms, and who took care of the deceased’s funeral arrangements.

[26] Based on the evidence, there is no doubt that the Appellant and the contributor had been legally married since 1968 and never divorced. According to the inheritance documents in evidence, the Appellant and her children are the contributor’s heirs. The Appellant also submitted many documents to show that she was the contributor’s spouse until his death.

[27] However, there is also no doubt that the contributor had a common-law partner, the Added Party. I must determine whether she qualifies as a survivor.

[28] The Added Party submitted into evidence the contributor’s Old Age Security application signed on August 11, 2012, where he indicated that he lived in Spain from February 2003 to July 2012 and that he worked in Spain in that same period, that his address at the time of the application was that of the Added Party (in X), that he was separated, and that the Added Party was his common-law partner.

[29] In January 2014, the mayor of X^{Footnote 30} certified that the contributor was domiciled in X and that he had come to City Hall.

[30] The documents dated between 2011 and 2014 concerning the contributor’s pension contributions were sent to him at the Added Party’s address.

[31] In November 2015, he completed a statement of change in situation^{Footnote 31} and indicated that his address was that of the Added Party, that he was retired, this his previous address was in Spain, and that he was an employee from February 2003 to October 2015.

[32] A few months before his death, a payment statement for a supplemental pension^{Footnote 32} dated April 18, 2016, was sent to the contributor at the Added Party’s address.

[33] In addition, the Added Party provided explanations about the contributor’s apartment in Spain, their professional life, their family life, family events with photos, and the scattering of the contributor’s ashes.

[34] Based on the evidence, I determine that the Added Party is the contributor’s survivor.

[35] Though the Appellant submitted many documents dated between May 2002 and September 2016, unfortunately, this evidence does not establish cohabitation between the Appellant and the contributor until his death. What the evidence does show is that the contributor does not seem to have changed his address for the business that concerned certain financial aspects between him and the Appellant. This includes documents related to a rented house owned by him and the Appellant, all the legal documents referring to that property, and some tax returns.

[36] The Appellant says that they never stopped living together and that the contributor continued to do business with Quebec and Ontario, where he went regularly. However, no evidence of the contributor’s travels to Quebec or Ontario was submitted.

[37] The Appellant also says that they always attended social and family events together with their children and that the contributor had a large family. They shared daily expenses, and when unable to return to France for a while, he would send her cheques or make bank transfers. Once again, no documentary evidence to that effect was provided with regard to the deposit of cheques or bank transfers. In addition, no family vacation or other photos were submitted. Lastly, the Appellant did not attend the contributor’s funeral.

[38] The Appellant’s evidence does not coincide with the time of the contributor’s death. Contrary to the Appellant’s allegations, the evidence shows that the contributor and the Added Party had been sharing a professional and personal life for many years when the contributor died. Moreover, the facts and dates provided by the Added Party are supported by documentary evidence and are not contradictory. While I cannot establish a start date for their common-law relationship, the evidence clearly shows that the contributor and Added Party lived together from 2012 until his death.

[39] As the CPP and the case law state, the contributor’s survivor is the one entitled to the survivor’s pension. Under the circumstances, I determine that the contributor’s survivor is his common-law partner, the Added Party.

Conclusion

[40] For the above reasons, I find that the Added Party is the contributor’s survivor in accordance with the CPP criteria. The Appellant is therefore not entitled to the survivor’s pension.

[41] The Appeal is dismissed.