Other Canada Pension Plan (CPP)

Overview

[1] The Appellant applied for a division of unadjusted pensionable earnings. The Respondent allowed the application initially and upon reconsideration. However, the Appellant appealed that decision on the basis that several months were not included in the division. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal) on May 31, 2021.

[2] This appeal involves a division of unadjusted pensionable earnings and whether the Appellant is entitled to the prorated period of January to September 2017.

[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 (Miter v Canada (A.G.), 2017 FC 262).

[4] The Tribunal has decided that this appeal has no reasonable chance of success for the reasons set out below.

Evidence

[5] The Appellant does not contest the date of separation. In her notice of appeal she sets out that she wanted the 9 months of their relationship in 2017 counted because her former partner made more money that year than he did in 1992 and therefore it would be more beneficial for her CPP credits if she was given that time.^{Footnote 1}

Submissions

[6] 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 as required by Section 22 of the Social Security Tribunal Regulations (Regulations). The Appellant was sent the notice of intention to summarily dismiss the appeal on July 26, 2021. A proof of service was sent by Purolator indicating that the document had been delivered on July 29, 2021 at 11:11am.^{Footnote 2} I am satisfied that the Appellant received the notice and was provided with an opportunity to make submissions.

Analysis

[7] The Tribunal is created by legislation and, as such, it has only the powers granted to it by its governing statute.  The Tribunal is required to interpret and apply the provisions as they are set out in the CPP.

[8] The Tribunal finds that the Appellant and her former partner separated on September 24, 2017. This is the date indicated in the statutory declaration of separation.^{Footnote 3}

[9] The CPP sets out the framework for pension credits in the case of a breakdown of a marriage. Section 55.1(1) of the CPP details that subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances:

1. (a) in the case of spouses, following a judgment granting a divorce or a judgment of nullity of the marriage, on the Minister’s being informed of the judgment and receiving the prescribed information;
2. (b) in the case of spouses, following the approval by the Minister of an application made by or on behalf of either spouse, by the estate or succession of either spouse or by any person that may be prescribed, if
   1. (i) the spouses have been living separate and apart for a period of one year or more, and
   2. (ii) in the event of the death of one of the spouses after they have been living separate and apart for a period of one year or more, the application is made within three years after the death; and
3. (c) in the case of common-law partners, following the approval by the Minister of an application made by or on behalf of either former common-law partner, by the estate or succession of one of those former common- law partners or by any person that may be prescribed, if
   1. (i) the former common-law partners have been living separate and apart for a period of one year or more, or one of the former common-law partners has died during that period, and
   2. (ii) the application is made within four years after the day on which the former common-law partners commenced to live separate and apart or, if both former common-law partners agree in writing, at any time after the end of that four-year period.

(2) Calculation of period of separation - For the purposes of this section,

1. (a) persons subject to a division of unadjusted pensionable earnings shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
2. (b) a period during which persons subject to such a division have lived separate and apart shall not be considered to have been interrupted or terminated
   1. (i) by reason only that either person has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the person’s own volition, if it appears to the Minister that the separation would probably have continued if the person had not become so incapable, or
   2. (ii) by reason only that the two persons have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose

(3) Period of cohabitation - For the purposes of this section, persons subject to a division of unadjusted pensionable earnings must have cohabited for a continuous period of at least one year in order for the division to take place, and, for the purposes of this subsection, a continuous period of at least one year shall be determined in a manner prescribed by regulation.

(4) Period for purposes of division - In determining the period for which the unadjusted pensionable earnings of the persons subject to a division shall be divided, only those months during which the two persons cohabited shall be considered, and, for the purposes of this subsection, months during which the two persons cohabited shall be determined in the prescribed manner.

(5) Minister’s discretion - Before a division of unadjusted pensionable earnings is made under this section, or within the prescribed period after such a division is made, the Minister may refuse to make the division or may cancel the division, as the case may be, if the Minister is satisfied that

1. (a) benefits are payable to or in respect of both persons subject to the division; and
2. (b) the amount of both benefits decreased at the time the division was made or would decrease at the time the division was proposed to be made.

[10] Paragraph 78.1 of the CPP Regulations sets out the basis of a division of unadjusted pensionable earnings. The CPP Regulations states the following:

[11] 78.1 (1) In determining, for the purposes of subsections 55.1(4) and 55.2(7) of the Act, the months during which the spouses, former spouses or former common-law partners cohabited,

1. (a) those months shall, subject to paragraphs (b) and (c), be reckoned as beginning with the first month of the year in which the marriage of the persons subject to the division was solemnized or in which they commenced to cohabit in a conjugal relationship, whichever is applicable;
2. (b) the persons subject to the division shall be considered not to have cohabited at any time during the year in which they were divorced or their marriage annulled or in which they commenced to live separate and apart; and
3. (c) where, after having lived separate and apart for one year or more, the persons subject to the division resumed cohabitation for at least one year, the period of that separation shall be considered to have begun with the first month of the year in which they commenced to live separate and apart and to have ended with the last month of the year immediately preceding the year in which they resumed cohabitation.

(2) In determining a continuous period of at least one year for the purposes of subsection 55.1(3) of the Act, such a period shall be considered to be constituted by any period of cohabitation by the persons subject to the division for twelve or more consecutive months, reckoned as beginning with the month in which the marriage was solemnized or in which they commenced to cohabit in a conjugal relationship and ending with the month immediately preceding the month in which they commenced to live separate and apart.

(3) For the purposes of this section, where the persons subject to the division did not have the intention to live separate and apart but were separated by reason of the occupation, employment or illness of either person, the separation does not constitute interruption of cohabitation.

[12] The CPP Regulations are clear that entitlement to a division of unadjusted pensionable earnings ends the December of the year before the couple separated pursuant to paragraph 78.1(1)(b) of the CPP Regulations. In this case, the December of the year before the couple separated was December 2016. As a result, the Appellant’s request for a division of unadjusted pensionable earnings for the year 2017 is denied.

[13] Accordingly, the Tribunal finds that the appeal has no reasonable chance of success.

Conclusion

[14] The appeal is summarily dismissed.