Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

[2] The Claimant, D. D., isn’t eligible for a Canada Pension Plan (“CPP”) credit split.^{Footnote 1} This decision explains why I am dismissing the appeal.

Overview

[3] The Claimant is 63 years old. From July 1989 to March 2000, she was in a common-law relationship with J. S.^{Footnote 2} J. S. died on February 18, 2004. E. D., who was also the Claimant’s father, was the Executor of J. S.’s estate. E. D. passed away in September 2019. As a result, M. D. (the Claimant’s brother) is now the Executor of J. S.’s estate.

[4] On July 24, 2019, the Claimant applied for a CPP credit split. She applied because of her common-law relationship with J. S. The Minister of Employment and Social Development (the “Minister”) denied the application initially and on reconsideration. The Claimant then appealed to the Social Security Tribunal (the “Tribunal”).

[5] The Claimant says she should get a CPP credit split because J. S.’s ex-wife successfully applied for one in 2007 at age 60. The Claimant says her common-law partnership with J. S. was similar to a marriage. She also says she had intended to marry J. S. Despite their 2000 separation, she says she still was the beneficiary of J. S.’s last will. She applied for the credit split right after she turned 60, on advice from her financial advisor and J. S.’s executor. At the hearing, the Claimant admitted that she did not know if a CPP credit split would increase or decrease her CPP entitlement.

[6] The Minister says a CPP credit split can only occur when a common-law partner applies within four years of the relationship’s end. However, in this case, the Claimant did not apply until more than 19 years after it ended. The Minister also notes that no signed waiver to bypass the four-year limitation was ever filed. Nor can a waiver be signed after the death of the deceased spouse.

What the Claimant must prove

[7] For the Claimant to succeed, she must first prove she had been J. S.’s common-law partner for a defined period. She must then prove that she applied within the applicable deadline after the common-law relationship ended.

Reasons for my decision

[8] For the reasons that follow, I find that the Claimant was J. S.’s common-law partner between July 8, 1989, and March 26, 2000.

[9] However, I also find that the Claimant did not apply in time for a CPP credit split.

The Claimant was a common-law partner from July 8, 1989, to March 26, 2000

[10] I accept that the Claimant was J. S.’s common-law partner. Her July 2019 Statutory Declaration says they had a common-law partnership from July 8, 1989, to March 26, 2000.^{Footnote 3} She also gave those dates in her application for the CPP credit split.^{Footnote 4} She filed part of a December 2000 Separation Agreement that also gives the same dates.^{Footnote 5}

[11] I see nothing to contradict the claimed dates of the common-law partnership. The Claimant said she and J. S. had intended to marry^{Footnote 6}, but the relationship ended before they could take that step. Her oral description of their relationship supports the claimed dates. The common-law partnership lasted for at least one continuous year: this is the minimum set out in the Canada Pension Plan.^{Footnote 7}

[12] As the Claimant proved she was in a common-law partnership from July 8, 1989, to March 6, 2000, I must now decide whether she met the other requirements for a CPP credit split.  

The Claimant does not meet all of the other requirements for a CPP credit split

[13] Before applying for a CPP credit split, a former common-law partner must wait for at least one year after the relationship’s end before applying (unless the other partner dies in that period).^{Footnote 8} The Claimant met this requirement, as she did not apply for more than 19 years after the relationship ended.

[14] A former common-law partner must also make the CPP credit split application within four years after the end of the relationship.^{Footnote 9} The Claimant did not meet this requirement. The only exception is if the former common-law partners agree in writing to the CPP credit split despite the passage of more than four years.^{Footnote 10} However, that provision only came into force in 2007. J. S. died in 2004. He could not consent to an extension that did not yet exist.^{Footnote 11} In any case, the Claimant doubted that J. S. ever signed any such document. At the hearing, she said neither of them knew about the four-year limit. She also confirmed that their December 2000 Separation Agreement said nothing about a CPP credit split.

[15] Nor do I see any evidence that the Claimant lacked the capacity to apply for the CPP credit split within four years of March 6, 2000. It is very difficult to establish incapacity under the Canada Pension Plan. It is not enough to show simply that the idea of applying did not occur to an applicant, or that the applicant had a disability.^{Footnote 12} I note that the Claimant had the capacity to sign a Separation Agreement in December 2000.^{Footnote 13} She attended nursing school during this four-year period. Starting in February 2004, she also attended to J. S.’s remains, effects, and estate.^{Footnote 14} All these actions strongly suggest she had capacity throughout the four-year period.^{Footnote 15}

[16] As the Claimant did not apply for the CPP credit split by March 6, 2004, she is ineligible for that credit split. This means her appeal must fail.

[17] I will now briefly look at some of the Claimant’s submissions that the above analysis may not directly address.

The Claimant’s submissions

[18] The Claimant says that her relationship with J. S. was very much like a marriage. She thinks she should be treated as if she were married to J. S.

[19] The drafters of the Canada Pension Plan saw fit to treat married spouses differently from common-law partners. As the Tribunal is created by statute, it can only grant remedies that it has the specific statutory authority to grant.^{Footnote 16} This means I cannot waive the four-year limitation period. I cannot treat the Claimant and J. S. as married spouses when they were not actually married. I can only treat them as common-law partners.

[20] The Claimant points out that J. S.’s former wife successfully applied for a CPP credit split in 2007 when she was 60 years old. This may be true. However, as noted, the CPP treats married spouses differently. In any case, J. S.’s former wife was not granted the CPP credit split because she had reached age 60. CPP credit split eligibility is not based on the applicant’s age, for either former spouses or former common-law partners.^{Footnote 17} Nor can the Tribunal assist the Claimant if she received erroneous advice from her advisors.

[21] Finally, it is not relevant that the Claimant may have been a beneficiary in J. S.’s will. I accept that the Claimant and her family remained in contact with J. S. after their common-law partnership ended. She did his business taxes after they separated. She noted that J. S. had no other family in Canada. She and her family took care of many things, including his estate, after his death in February 2004.^{Footnote 18} They even brought J. S.’s remains back to his native Scotland. But this does not change the fact that the common-law partnership ended on March 6, 2000. Nor does it change the fact that she did not apply for the CPP credit split until July 24, 2019.

Conclusion

[22] I find that the Claimant isn’t eligible for a CPP credit split. She did not apply for it within four years of ending her common-law partnership with J. S.

[23] This means the appeal is dismissed.