Other Canada Pension Plan (CPP)

Decision and Reasons

Decision

[1] I refuse the Claimant’s application for permission (leave) to appeal. These reasons explain why.

Overview

[2] M. W. (Claimant) has had a relationship with R. R. (Contributor). The Contributor died on January 21, 2018. The Claimant said that she was his common-law partner when he died. She applied for a Canada Pension Plan (CPP) survivor’s benefit in April 2018. The Minister denied her application. The Claimant appealed the Minister’s decision to this Tribunal. The General Division dismissed her appeal. The General Division decided that the Claimant did not “cohabit with the contributor in a conjugal relationship” when the contributor died.

[3] I must decide whether there is an arguable case that the General Division made an error under the Department of Employment and Social Development Act (DESDA) that would justify granting leave to appeal.

[4] I find that there is no arguable case for an error under the DESDA. I refuse the Claimant’s application for leave to appeal.

Preliminary matters

[5] The Tribunal received the Claimant’s application for leave to appeal by mail on March 2, 2020. The application contained:

• a five-page handwritten letter dated March 19, 2019,
• a ten-page handwritten letter dated February 4, 2020, and
• some supporting paperwork (like income tax information).

[6] The Claimant communicated with the Tribunal by email and by phone in March and in April, 2020. She seemed to be saying that she sent the Tribunal some more documents by regular mail in addition to the documents the Tribunal already received on March 2, 2020 (although this was not entirely clear). The Tribunal was not accessing the regular mail during the pandemic starting on about March 13, 2020.

[7] The Tribunal emailed Claimant on May 1, 2020, explaining that her application was on hold (in abeyance). The letter explained that the file would stay on hold until she either:

• re-sends the second set of documents by email (if she has a copy of them); or
• tells the Tribunal that the Tribunal can go ahead and decide the application for leave to appeal without waiting to review those documents; or
• the Tribunal Member reviews the documents (once the Tribunal has access to the regular mail again at some time in future).

[8] The Tribunal has now accessed the mail. There was nothing additional there from the Claimant. The Tribunal has contacted the Claimant by voice mail three times to let her know that we did not receive anything further from her in the mail. The Claimant has not responded.

[9] The file is no longer on hold. I am satisfied that the Claimant has had a fair process and that the Tribunal has given her the opportunity to make arguments on every fact or factor likely to impact her case. The file was on hold in case there were more mailed documents for the Tribunal to review. I am satisfied that the Tribunal has the Claimant’s documents. It does not appear that there were any further documents from the Claimant that had been stuck in the Tribunal’s mail system in March, 2020.  

Issue

[10] Is there an arguable case that the General Division made an error?

Analysis

Reviewing General Division decisions

[11] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to decide whether it committed an error calling for a review. That review is based on the wording of the DESDA, which sets out the grounds of appeal.^{Footnote 1} The three reasons for an appeal arise when the General Division fails to provide a fair process, makes an error of law, or makes an error of fact.

[12] At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success of satisfying the Appeal Division that the General Division made a reviewable error.^{Footnote 2} To meet this requirement, a claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 3}

CPP Survivor’s Pension

[13] To get a CPP survivor’s pension, a claimant must be the survivor of a deceased contributor.^{Footnote 4} A survivor is a person who was living in a common-law relationship with the deceased contributor for at least 12 consecutive months before death (or was legally married to the deceased at the time of death, if the deceased contributor was not in a common-law relationship at the time of death).^{Footnote 5}

[14] In the CPP, a common-law partner means “a person who is cohabiting with the contributor in a conjugal relationship” at the time of the contributor’s death, “having so cohabited with the contributor for a continuous period of at least one year.”^{Footnote 6}

[15] To decide whether a survivor meets that definition of being in a common-law relationship, the General Division considers facts about the lives of the parties.^{Footnote 7} For the CPP survivor benefit, it is possible for a couple to have been cohabiting in a common-law relationship, even if they do not live under the same roof at all times. A common law partnership ends when either party considers it has ended, and shows in a convincing way that their mind is made up.^{Footnote 8}

Is there an arguable case that the General Division made an error?

[16] There is no arguable case that the General Division made an error. The General Division applied the correct law to the facts of the case. I have reviewed the case and I am satisfied that the General Division did not misunderstand or ignore the evidence.

[17] The Claimant argues^{Footnote 9} that everyone is entitled to a survivor’s pension, and that it does not matter whether you are “together” with the contributor when the contributor dies.^{Footnote 10} The Claimant says she was honest about the fact that when the Contributor died, he was not living with her. He was abusive to her and to her son, who has special needs.

[18] The Claimant says she knows other women who receive the survivor’s pension even though they were not living with the contributor at the time the contributor died. For example, one of her friends was divorced from a contributor for 9 years when she was approved for the survivor’s pension. The Claimant notes that she is being treated unfairly in comparison – she was not living with the Contributor (her common law spouse) because he was abusive, and that choice seems to have disqualified her for the survivor’s pension.

[19] The General Division decided that the Claimant did not cohabit with the Contributor in a conjugal relationship at the time of his death. These are the facts the General Division member relied on to reach that conclusion:

1. The Claimant and the deceased contributor decided to separate on December 31, 2016. But the deceased contributor had a heart attack. He also suffered from diabetes. He returned to live with the Claimant after his release from the hospital in February 2017. He continued to live with the Claimant until August 2017. The Claimant had a difficult relationship with the deceased contributor. They received marriage counselling. The deceased contributor returned to live with the Claimant for two weeks in September 2017. They decided to go their separate ways. The deceased contributor returned to the Claimant’s residence in October 2017. He assaulted the Claimant. This led to a restraining order. The deceased contributor had a pending court date in February 2018. However, he died on January 21, 2018. The Claimant had no contact with the deceased contributor after the October 2017 assault. She did not learn about the deceased contributor’s death until her friends told her about it.^{Footnote 11}

[20] The General Division also considered factors about the Claimant’s life, including (but not limited to):

• the Claimant’s argument that she still considered herself the Contributor’s common-law partner when he died;^{Footnote 12}
• the Claimant’s testimony that she was sexually intimate with the Contributor in the year before he died, took care of him when he was unwell, shared meals with him, and that they bought each other gifts;^{Footnote 13}
• the fact that the Claimant did not plan or attend the funeral and the reasons for that decision;^{Footnote 14}
• the Claimant’s documents about her separation with the Contributor and the contradictions involved in that evidence;^{Footnote 15}
• the Contributor’s family’s statutory declaration about the Claimant’s separation from the Contributor;^{Footnote 16} and
• the Claimant’s argument that the restraining order she had against the Contributor at the time of his death was the only reason they were apart (in other words, it was an involuntary separation, as occurs when one person is in the hospital, for example).^{Footnote 17}

[21] The General Division member concluded that this was not an involuntary separation. The common-law relationship ended before the Contributor’s death. They had no contact with each other after October 2017 when the Contributor assaulted the Claimant.

[22] In my view, there is no arguable case for an error by the General Division. The General Division applied the law about the survivor’s pension. There is no arguable case for an error of law. The Minister awards the survivor’s pension when the claimant cohabits with the Claimant in a conjugal relationship at the time of the Contributor’s death. The Claimant had not seen the Claimant for several months before he died. They were not living together.

[23] The General Division decided that the Claimant and the Contributor were not involuntarily separated, either. The Claimant has good reasons for no longer living with the Contributor when he died, but they do not help her to show that she is entitled to the survivor’s pension.

[24] I have reviewed the record in this case. There is no arguable case that the General Division ignored or misconstrued the evidence. The General Division member considered the relevant facts about the Claimant and her relationship to the Contributor. The General Division member reached a conclusion about those facts by applying the law from the CPP.

[25] Similarly, I see no arguable case that the General Division might have failed to provide the Claimant’s with a fair process.

[26] I echo the comments from the General Division – although the Claimant is not entitled to survivor’s pension, the General Division encouraged her to contact immediately Service Canada if she wishes to split pension credits with the Contributor. That action could affect the amount of CPP retirement benefits she is eligible for when the time comes.  

Conclusion

[27] I refuse the Claimant’s application for permission (leave) to appeal.