Other Canada Pension Plan (CPP)

Decision

[1] The Claimant and her former husband J. B. were not common-law partners at the time of his death. She is not entitled to the Canada Pension Plan (CPP) survivor’s benefit.

Overview

[2] The Claimant and J. B. were married in December 1961.^{Footnote 1} They separated in September 1985, and divorced in April 1999.^{Footnote 2} J. B. died in May 2020.^{Footnote 3} In June 2020, the Claimant applied for the CPP survivor’s benefit.^{Footnote 4} The Minister denied her application both initially and on reconsideration. The Claimant appealed to the Social Security Tribunal.

[3] The Minister’s position is that the Claimant does not qualify for the CPP survivor’s benefit. Although she and J. B. continued to live together as co-residents following their divorce, they were not common-law partners as defined by the CPP.^{Footnote 5}

[4] The Claimant’s position is that she and J. B. cohabited as common-law partners from April 1999 (when they divorced) until May 2020 (when he died).^{Footnote 6}

Issue

[5] Were the Claimant and J. B.  common-law partners at the time of his death in accordance with the CPP definition?

Analysis

[6] The Claimant  must establish that it is more likely than not, that she was cohabiting with J. B. as his common-law partner at the time of his death, and that they had so cohabited for a period of at least one year.^{Footnote 7}

[7] The Federal Court  has stated that the factors that are indicative of a common-law relationship include the following:^{Footnote 8}

1. 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. 2) Sexual and personal behaviour, including whether the parties had sexual relations, maintained an attitude of fidelity to each other, communicated on a personal level, ate together, assisted each other with problems or during illness, or bought each other gifts;
3. 3) Services, including the roles they played in preparation of meals, doing laundry, shopping, conducting household maintenance and other domestic services;
4. 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. 5) Societal, including the attitude and conduct of the community towards each of them as a couple;
6. 6) Support, including the financial arrangements between them for provision of necessaries and acquisition and ownership of property; and
7. 7) Attitude and conduct concerning any children.

[8] I now turn to each of the factors set out above.

Shelter

[9] The Claimant stated that they were living in a house on X when they separated in 1985. She bought out J. B.’s interest in the house. He moved out for about a year and a half. He moved back in because he had no money and had medical problems. In 1990, she sold the X house. She bought and moved to a house on X. He moved to the X house with her. They were living on X when they divorced in 1999. She divorced him because he was becoming too controlling – she did not like being controlled.  

[10] J. B. continued living in the X house after they divorced. She owned the house. She paid the mortgage and other expenses for the house. In 2004, she sold the X house. She bought and moved to a house on X. She arranged for the mortgage on the X house. She paid the mortgage and other expenses for the house. J. B. moved with her and lived in the X house until he died in May 2020.

[11] They had separate bedrooms in each of these houses. They did not sleep together. He was “hard to take.” They were not compatible She characterized their relationship as a co-dependency. They “needed” each other. They were a “couple hood.” They looked out for each other. She said, “He kind of watched out for me.”

Sexual and personal behaviour, services, and social ^{Footnote 9}

[12] After they separated in 1985, the Claimant dated someone for a couple of months. This was before they divorced. They were living in the X house at that time. J. B. was very “nasty” about this. This contributed to their getting divorced. She wanted companionship, which she could not get from J. B..

[13] The Claimant cooked and made meals for J. B.. She did the housework. He did the yard work and snow shovelling. She bought his clothes and did his shopping. She bought a television for his room.

[14] They did not eat meals together because J. B. ate by himself. They did not go places together because J. B. did not go places. She went to church by herself. They went shopping and to Home Depot together.

[15] The Claimant took J. B. to doctor’s appointments. She picked up his medications. She made phone calls to doctors for him. When he became very ill, she changed his diapers. She visited him every day when he was in the hospital.^{Footnote 10} She is noted as his wife on a May 2020 hospital emergency record.^{Footnote 11} Sympathy cards refer to J. B. as her husband.^{Footnote 12} She paid for his funeral expenses.^{Footnote 13}

[16] They had not been intimate since 1990 because of J. B.’s health problems. In December 2020, Dr. Rockman, family doctor, stated that the Claimant and J. B. lived together for years prior to his death. They did not have conjugal relations because of J. B.’s medical issues. He further stated, “In all other ways, they cared for each other’s emotional and physical needs.” ^{Footnote 14} A written statement from a Claimant’s co-worker and friend stated that the Claimant and J. B. continued to live together after their divorce. They shared household duties and supported each other on a day-to-day basis. Although they had divorced, they were “like a married couple.”^{Footnote 15}

Support and financial arrangements

[17] Their finances were separate. The Claimant stated, “I kept my finances to myself … I had already paid once for an equalization for the house… I was not going to take a chance of having to pay all over again… I did not want J. B. making any claims.”

[18] She had a separate bank account. J. B. paid her $400 a month for expenses. J. B. had his own bank account. She had one credit card, which was in her name. She had a car that was in her name. After the divorce, their daughter D. B. was the only beneficiary of her will and life insurance policy. The Claimant provided in her will that J. B. could continue to stay in the house. They both had powers of attorney. J. B. and D. B. were her powers of attorney. She and D. B. were J. B.’s powers of attorney.

[19] The Claimant represented her marital status as divorced (not common-law) on her applications for an Old Age Security (OAS) Pension and for the Guaranteed Income Supplement (GIS) in 2009.^{Footnote 16} J. B. represented his marital status as single (not common-law) for obtaining GIS payments through the OAS pension program from 2001 until he died in 2020.^{Footnote 17}

[20] She prepared her and J. B.’s income tax returns. After 1999, she indicated that they were divorced. I asked her why she did not indicate they were living in a common-law relationship. She explained that she does not believe in common-law relationships. She is a born again Christian and believes that living in a common-law relationship is a sin. She stated that she did not know that J. B. was receiving the GIS based on his representing his marital status as single as opposed to common-law.

Attitude and conduct concerning children

[21] D. B. is their only daughter. J. B. did not do things with her (D. B.) because he was a recluse. The Claimant took D. B. and her children to Disney World in 2003 and 2011. J. B. did not go because he did not go on vacations.

[22] D. B. testified that even though her parents’ relationship was unusual, they always loved each other. Her mother would not have cared for her father the way she did, unless she loved him.

My findings

[23] Although a common-law relationship usually involves a common residence, each case must be determined on its own facts.^{Footnote 18} Two people can co-habit even though they do not live under the same roof. On the other hand, they may not be cohabiting in the relevant sense even if they are living under the same roof. A common-law relationship ends when either party regards it as being as an end and by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.^{Footnote 19}

[24] The extent to which the different factors of a common-law relationship should be taken into account varies with the circumstances of each case.^{Footnote 20} I must keep in mind the endlessly variable nature of marriage in our society and assess the specific circumstances, to determine if the Claimant and J. B. had a marriage like relationship.^{Footnote 21} I must not evaluate the quality of their relationship.^{Footnote 22}

[25] There is no comprehensive definition of conjugal cohabitation. It is a manifestation of the intention of the parties as evidenced by their social and economic interaction with each other.^{Footnote 23}

[26] Reluctantly, I have concluded that the Claimant and J. B. did not live in a common-law relationship at the time of his death.

[27] Their social and economic interaction, does not establish an intention to live in a common-law relationship. Following their separation, the Claimant was careful to keep their finances separate. There was almost no social interaction. Her relationship with him was that of being a devoted caregiver as opposed to being a common-law partner.

[28] Further, the Claimant in applications for her OAS pension and for the GIS supplement represented that her marital status was “divorced” as opposed to “common-law.” J. B. represented himself as “single” as opposed to “common-law” when obtaining GIS benefits for over 20 years. The Federal Court of Appeal has stated that it is reasonable to determine that persons were not in a common-law relationship when they have told tax and social welfare authorities that they were “single” as opposed to in a “common-law relationship.” ^{Footnote 24} Persons should not be allowed to represent to the government that they were not in a common-law relationship for obtaining benefits, and later represent that they were, for obtaining a CPP survivor’s benefit.

[29] The Claimant also relies on a visit that she and J. B. made to the Service Canada offices in 1999, when the Minister was equalizing their CPP contributions. They told Service Canada that they wanted to provide that they would continue to be entitled to survivor’s benefits as if they were still married. They wrote a letter to Service Canada at that time confirming this.^{Footnote 25} However, entitlement to a survivor’s pension is determined according to the CPP, not by agreement of the parties. Since they were divorced, she could only be entitled to the survivor’s pension if she and J. B. were common-law partners at the time of his death. I have determined that they were not.

[30] The Claimant has failed to establish that it is more likely than not that the she and J. B. were common-law partners at the time of his death.

Conclusion

[31] The Claimant is not entitled to the CPP survivor’s benefit.

[32] The appeal is dismissed.