Other Canada Pension Plan (CPP)

Decision

[1] The appeal is allowed.

[2] The Appellant, D. C., is eligible for a Canada Pension Plan (CPP) survivor’s pension as the legally married spouse of the deceased, D. D. I am satisfied that the Added Party, A. R., was not cohabiting with the deceased in a common-law relationship, as defined in the CPP, at the time of her death. This decision explains why I am allowing the appeal.

Overview

[3] The Appellant says he married the deceased around 2000 or 2001. However, the marriage certificate was never registered. The deceased passed away on October 21, 2017. The Minister of Employment and Social Development (the Minister) received the Appellant’s survivor’s pension application in August 2018.

[4] The Minister denied the Appellant’s application because it believed the deceased had been living in a common-law relationship with the Added Party at the time of her death.^{Footnote 1} The Minister had already decided to award the survivor’s pension to the Added Party in May 2018.

[5] The Appellant asked the Minister to reconsider its decision. The Minister declined his reconsideration request.^{Footnote 2} The Appellant appealed the Minister’s reconsideration decision to the Social Security Tribunal of Canada.

[6] The Appellant says that he is entitled to the survivor’s pension because he is the legally married spouse of the deceased and the Added Party was not in a common-law relationship with the deceased at the time of her death. The Appellant relies on a decision of a judge of the Ontario Superior Court of Justice. This decision said the Added Party did not live in a common-law relationship with the deceased at the time of her death.

[7] The Minister did not dispute that the Appellant was the legally married spouse of the deceased.^{Footnote 3} However, it says the Appellant is not entitled to the survivor’s pension. This is because the evidence showed that the Added Party had lived in a common-law relationship with the deceased as defined under the CPP.

[8] The Added Party did not participate at the hearing.

The added party wasn’t at the hearing

[9] The Added Party did not attend a prehearing conference for all the parties on October 22, 2021.

[10] I set a hearing date for November 30, 2021. The Added Party contacted the Tribunal on the morning of November 30, 2021. He advised that he had only recently received a copy of the Notice of Hearing and was not ready to proceed. The Added Party did not attend the hearing. The Appellant and his legal representative objected to an adjournment. I granted the adjournment. I decided to give the Added Party an opportunity to prepare for the hearing. I asked the Tribunal to send the Added Party a complete copy of the Tribunal file. I rescheduled the hearing to January 12, 2022. I gave the Added Party until December 8, 2021 to state any objections he had to the hearing proceeding on January 12, 2022. I said if I did not hear from the Added Party by December 8, 2021, the videoconference hearing would proceed on January 12, 2022 on a peremptory basis. This meant that the hearing would only be adjourned if the Added Party showed exceptional circumstances.^{Footnote 4} The Added Party never contacted the Tribunal to object to the January 12, 2022 hearing date.

[11] The Added Party did not dial into the hearing on January 12, 2022. I asked the Registry Office (RO) to contact the Added Party after the hearing started, but the RO could not get in touch with the Added Party.

[12] A hearing can go ahead without the Added Party if he got the notice of hearing.^{Footnote 5} I decided that the Added Party got the notice of hearing. The Tribunal file shows the notice of hearing was delivered to the address provided by the Added Party on December 3, 2021. In addition, the Tribunal file shows that the RO left a message with the Added Party on January 4, 2022 at the telephone numbers he had provided and reminded him about the January 12, 2022. So, the hearing took place, but without the Added Party.

What is the test for a survivor’s pension

[13] A survivor’s pension is payable to the survivor of a deceased contributor.^{Footnote 6} The survivor is the common-law partner of the contributor at the time of death. If there is no eligible common-law partner, the survivor is the person who was married to the contributor at the time of death.^{Footnote 7} A legal marriage ends on divorce, not on separation.^{Footnote 8}

[14] The common-law partner is the person who was cohabiting with the deceased in a conjugal relationship at the relevant time, having so cohabited for a continuous period of at least one year. The relevant time refers to the deceased’s death.^{Footnote 9}

[15] The Federal Court in a decision called McLaughlin v Canada (Attorney General), 2012 FC 556 ruled that the generally accepted characteristics of a conjugal relationship include the following:

• Shelter, including consideration of whether the parties lived under the same roof, slept together, and whether anyone else occupied or shared the available accommodation;
• Sexual and personal behaviour, including whether the parties have sexual relations, maintain an attitude of fidelity to each other, communicate on a personal level, eat together, assist each other with problems or during illness or buy each other gifts;
• Services, including the roles they played in preparation of meals, doing laundry, shopping, conducting household maintenance and other domestic services;
• Social, including whether they participated together or separately in neighbourhood and community activities and their relationship with respect to each other’s family members;
• Societal, including the attitude and conduct of the community towards each of them as a couple;
• Support, including the financial arrangements between the parties for provision of necessaries and acquisition and ownership of property;
• Attitude and conduct concerning any children.

[16] All the characteristics of a conjugal relationship may be present in varying degrees, but not all are necessary for the relationship to be conjugal.^{Footnote 10}

[17] For the reasons that follow, I find the evidence showed that the Appellant was the legally married spouse of the deceased and the Added Party had not cohabited in a common-law relationship at time of the deceased’s passing. This means the Appellant is entitled to the survivor’s pension.

Reasons for my decision

[18] I find that the Appellant is entitled to the survivor’s pension. I reached this decision by considering the following issues:

• Was the Appellant the legally married spouse of the deceased?
• Was the Added Party the deceased’s common-law partner at the time of her death?

The Appellant was the legally married spouse of the deceased

[19] When the Appellant applied for the survivor’s pension in August 2018, he did not say that he was married to the deceased.^{Footnote 11}

[20] The Appellant submitted another survivor’s pension application in November 2019. In that application, he said that he had married the deceased in 2006.^{Footnote 12}

[21] The Appellant said in his Notice of Appeal that he began living with the deceased in a common-law relationship in 1995. He solemnized his relationship with the deceased with a small wedding in 2000. He said the marriage licence may not have been properly registered and the original marriage certificate had not been located. He had three children with the deceased. They never divorced, but separated in 2010.^{Footnote 13}

[22] The Appellant submitted an affidavit sworn by two people who witnessed his wedding to the deceased. The witnesses swore that a wedding to took place in 2000 or 2001 at the Appellant and deceased’s residence. The witnesses signed a marriage register. They swore that the Appellant and deceased exchanged matrimonial vows and placed wedding rings on each other’s fingers.^{Footnote 14}

[23] The Appellant testified that he gave different dates of marriage in the applications because he is poor with dates. I accept that he did not say he was married to the deceased in his August 2018 application because he believed he had been in a common-law relationship with the deceased. The basis for this belief is that he could never locate the marriage certificate.

[24] The Appellant testified that the deceased told the reverend not to register the marriage licence. He thinks she did this because a change in marital status might have affected their taxes. He said he wore a wedding ring and that he lived as husband and wife with the deceased before their separation. His family considered him and the deceased a married couple. The deceased’s family considered them a married couple. The deceased’s late mother attended their wedding ceremony.

[25] I am satisfied that the Appellant was the legally married spouse of the deceased. The Minister did not dispute the Appellant’s position that he was the deceased’s legally married spouse. Under the CPP Regulations, a party does not have to provide the Minister with a marriage certificate to prove that they were legally married.^{Footnote 15} The Appellant provided enough information to satisfy the Minister that he was legally married to the deceased.

[26] I also agree with the submissions of the Appellant’s legal representative that the Appellant was the deceased’s legally married spouse, even though a marriage licence was not registered.^{Footnote 16} I find that the Appellant and deceased got married in good faith. They exchanged vows and rings. They paid for an officiant to conduct the ceremony. They had two witnesses at their wedding as required by law.^{Footnote 17} They were of legal age and were not intoxicated during the ceremony. They also lived as a married couple after the ceremony, which including having a daughter in 2004.

[27] The legal representative’s submissions dealt with the test for validating marriage’s under Ontario’s Marriage Act in circumstances when a marriage licence has not been issued.^{Footnote 18} I am not dealing with the issue of whether the Appellant’s marriage was valid under Ontario’s Marriage Act. I am dealing with the issue of whether the Appellant was legally married under the CPP. But Ontario’s Marriage Act shows that people can be deemed legally married even when a marriage licence has not been issued. I also believe that the issuance of a marriage licence is also not a requirement for a legal marriage under the CPP.

The added party was not the deceased’s common-law partner at the time of her death

[28] The Appellant submitted an October 26, 2018 decision from the Ontario Superior Court of Justice to show that the Added Party was not in a common-law relationship with the deceased when she passed away.

[29] The Appellant and Added Party went to court to determine who the “survivor” was under the terms of the deceased’s pension plan with her employer. The Added Party did not participate at this hearing. The court found that the deceased called the police on September 14, 2017 and reported an assault by her “roommate”. The Added Party was arrested and charged with assault. The deceased told the police that she and the Added Party were friends.^{Footnote 19}

[30] The court found that the Added Party and the deceased were not in a common-law relationship when the assault occurred about five weeks before she passed away. The Added Party was prohibited from having any contact with the deceased at the time of her passing on October 21, 2017. The Added Party was in jail because of the assault when the deceased passed away. The court concluded that the Added Party and the deceased were not in a common-law relationship when the deceased died.^{Footnote 20}

[31] The court noted that the deceased’s children were the only named beneficiaries under her pension plan. The deceased’s employment file did not show that she had a spouse at the time of her death.^{Footnote 21}

[32] I place significant weight on the Ontario Superior Court of Justice decision filed by the Appellant. The court made a finding that the Added Party and deceased were not in a common-law relationship when she had passed away. The Added Party was prohibited from seeing the deceased after the assault. He also did not live with the deceased at the time of her death because he was in jail. I agree that these facts show that a common-law relationship did not exist at the time of death.

[33] The Added Party’s said in his application for the survivor’s pension that he had begun living common-law with the deceased in 2006.^{Footnote 22} He swore a Statutory Declaration in May 2018 that he was in a common-law relationship with the deceased at the time of her death. He said that they had jointly signed a residential lease. He also shared an automobile policy and a mailing address with the deceased.^{Footnote 23}

[34] The Added Party submitted documents in support of his survivor’s pension application. But I find that these documents do not support a finding that he had cohabited with the deceased in a conjugal relationship in the one year period before she passed away.

[35] The Added Party provided an undated hospital record that said he was the deceased’s common-law partner.^{Footnote 24} I do not place much weight on this document because it does not confirm that there was a common-law relationship for at least one year before the deceased passed away.

[36] The Added Party provided a social services form that said he was the deceased’s common-law partner.^{Footnote 25} I do not place much weight on this document because it was drafted in February 2016, more than one year before the deceased passed away.

[37] The Added Party provided a document that showed the deceased was a named insured on an automobile insurance policy where he was listed as a driver.^{Footnote 26} I do not place much weight on this document because the policy period ended in September 2017, before the deceased passed away.

[38] The Added Party provided an invoice to replace a burnt heater receptacle and cord end. But I do not believe that this document showed a common-law relationship at the time of the deceased’s passing because it was created in January 2017, before the assault and incarceration of the Added Party.^{Footnote 27}

[39] The Added Party provided a February 2018 letter from a community service organization that said that the Added Party had begun receiving counselling to deal with the loss the deceased. The deceased was describes as his wife in this letter.^{Footnote 28} However, I do not place much weight on this letter. Parties in a common-law relationship have to show by their acts and conduct, a mutual intention to live together in a marriage-like relationship of some permanence.^{Footnote 29} A common-law relationship ends when either party regards it as being finished and demonstrates by their conduct, that the decision to end it is a settled one.^{Footnote 30} I find the evidence showed that the deceased did not intend to live in a marriage-like relationship of some permanence with the deceased at the time of her death. I place more weight on the court finding that the deceased considered the Added Party to be a friend and roommate, as opposed to a spouse. I also agree with the Appellant’s legal representative that whatever common-law relationship that may have existed between the Added Party and deceased had ended before her death. This is because the Added Party could not contact the deceased because of a restraining and was in jail for assaulting her when she passed away.

[40] The Appellant testimony also supports a finding that a common-law relationship did not exist when the deceased passed away. The Appellant said that the Added Party and deceased may have been in a common-law relationship at one time. But that was certainly not the case by the time the deceased passed away. The Appellant said the deceased was afraid of the Added Party. She suffered violence and abuse at the hands of the Added Party. He said that the relationship between the Added Party and deceased was not conjugal before the deceased died. They had been living in separate rooms. The Appellant said that he paid for and organized the deceased’s funeral and received a death benefit under the CPP. He was named the executor of the deceased’s estate. A funeral director’s proof of death form listed him, and not the Added Party, as the deceased’s spouse.^{Footnote 31} A proof of death certificate also named the Appellant as the deceased’s next-of-kin.^{Footnote 32}

[41] I find the evidence did not show that the Added Party cohabited with the deceased in a conjugal relationship for at least one year at the time of her death.

[42] When I consider the factors for a conjugal relationship set out by the Federal Court in McLaughlin, I find that the Added Party and deceased were not in a common-law relationship at the time of her death. They did not live together. Their separation was not involuntary because a restraining order was taken out against the Added Party. I have no reason to disbelieve the Appellant’s evidence that the Added Party and deceased lived in separate rooms before the Added Party’s incarceration. I do not see significant evidence about what type of household services the deceased and Added Party performed for each other. I do not see evidence that the deceased and Added Party participated together in neighbourhood or community activities. I do not believe the evidence showed that the community treated the Added Party and deceased as spouses. The deceased’s employment file did not contain a record that showed the Added Party was the deceased’s spouse. The Minister of Community and Social Services also described the Appellant, and not the Added Party, as the deceased’s spouse in an October 2018 letter.^{Footnote 33} I do not see evidence that the Added Party and deceased financially supported each other. The Appellant had custody of all the children at the time of the deceased’s passing, and the evidence showed that any relationship between the Added Party and deceased ended by the time of her death.

Conclusion

[43] I find that the Appellant is eligible to receive the survivor’s pension. This is because he was the legally married spouse of the deceased and the Added Party was not in a common-law relationship with the deceased at the time of her death

[44] This means the appeal is allowed.