Other Canada Pension Plan (CPP)

Decision

[1] The appeal is partially allowed. The Appellant, S. R., is entitled to receive a Disabled Contributor’s Child Benefit (DCCB) from February 2017 to August 2018.

[2] I do not have jurisdiction to award her a DCCB before February 2017.

[3] These reasons explain why I made this decision.

Overview

[4] The Appellant and Added Party got married in September 2003. They separated in September 2013. They have two children under the age of 18.

[5] The Added Party receives a Canada Pension Plan (CPP) disability pension. He applied for the DCCB in April 2013. His application was approved. He began receiving a DCCB as of May 2012.

[6] The Appellant did not know about the DCCB until December 2017. That was when the Minister of Employment and Social Development (the Minister) was advised by the Added Party that he no longer had custody and control of the children.^{Footnote 1} The Minister wrote to the Appellant in December 2017 and advised her that she might be entitled to receive the DCCB for her children.^{Footnote 2}

[7] The Appellant applied for the DCCB in January 2018.^{Footnote 3} The Minister awarded her the DCCB from April to November 2015, which was a period of time when the Added Party did not have access to the children. The Minister also awarded her the DCCB from January to August 2018, which was the month the application was received to the date that a new Ministerial policy came into effect.

[8] The Appellant does not dispute the Added Party’s receipt of the DCCB after August 2018. The Minister’s policy that came into effect in August 2018 said that a DCCB for children under 18 should be paid to the disabled contributor who had any custody and control of the children. She accepts that the deceased had some custody and control of the children as of August 2018.

[9] The Appellant disagreed with the Minister’s decision awarding her the DCCB for the periods of April to November 2015 and from January to August 2018. She believes the Minister should have paid her the DCCB from September 2013 (the date of separation) to August 2018. However, the Minister maintained its initial decision.^{Footnote 4} The Appellant appealed the Minister’s decision to the General Division of the Social Security Tribunal.

[10] The Appellant says that she should receive the DCCB from September 2013 to August 2018 because she had custody and control of the children.

[11] The Added Party says that he should receive the DCCB from September 2013 to August 2018 because he had custody and control of the children.

[12] The Minister changed its position before the hearing. The Minister says the Appellant should receive the DCCB from February 2017 to August 2018. This is because the Appellant applied for the DCCB in January 2018 and the law says that payment of the DCCB can start no earlier than 11 months before the Minister received the DCCB application.^{Footnote 5}

The DCCB – What it is

[13] The DCCB is a flat-rate monthly benefit that is paid for each child of a person receiving the CPP disability benefit.^{Footnote 6}

[14] The CPP says that where a DCCB is payable to a child under 18, payment is made to the person having custody and control of the child.^{Footnote 7}

[15] The CPP also says that the contributor is presumed to be the person having custody and control of the child except when the child is living apart from them.^{Footnote 8} The children do not live with the contributor (Added Party). This means that I cannot presume that he has had custody and control of the children.

[16] The CPP does not define the term “custody and control”. The Tribunal has accepted the definition of custody set out by a British Columbia Court. It says:

In the narrow sense of the word, custody means physical care and control or day to day care and control of a child. In the broad sense of the word, “custody” means all of the rights and obligations associated with physical day to day care and control of a child as well as the right and obligation to nurture the child by ensuring, providing for, and making decisions in relation to, a child’s physical and emotional health, education, religious or spiritual development, and all other means that affect the welfare of the child.^{Footnote 9}

[17] In a case called Warren, the Pension Appeals Board decided that the parent who took responsibility for the child’s maintenance, schooling, participation in sports and who was financially responsible for the child’s welfare retained “control” of the child.^{Footnote 10}

Reasons for my decision

[18] I find that the Appellant is entitled to receive the DCCB from February 2017 to August 2018. I reached this decision by considering the following issues:

• Who had custody and control of the children and when?
• Can I award the Appellant a DCCB before February 2017?

Who had custody and control of the children?

[19] I find that the Appellant had primary custody and control of the children from September 2013 to October 2018. This period covers the date of separation to the date the parties entered into a parenting agreement in October 2018, which provided joint custody of the children.

[20] The Appellant and Added Party have been involved in matrimonial litigation in Saskatchewan. The Appellant filed a copy of a November 22, 2016 decision of the Saskatchewan Court of Queen’s Bench in support of her appeal.^{Footnote 11} The decision dealt with several issues, including custody of the children. The decision also made findings on who had primary care of the children.

[21] The Saskatchewan Court of Queen’s Bench said the Appellant worked full-time from September 2013 to April 2015. Both parties acknowledged that the Added Party would come into the family home to care for the children during the day while the Appellant worked. This continued until April 2015.^{Footnote 12}

[22] In April 2015, the Appellant told the Added Party she was uncomfortable with him coming into her home when she worked. The Appellant alleged that the Added Party was not contributing towards household expenses. The Added Party disagreed. The parenting arrangement changed at that time.^{Footnote 13}

[23] The Saskatchewan Court of Queen’s Bench said the Added Party lived in his parents’ condominium from April to November 2015. The Appellant alleged that the Added Party refused to watch over the children or have parenting time with the children overnight. The decision said that the Added Party did not dispute this except to say that he cared for the children when they were at his parents’ condominium.^{Footnote 14}

[24] The Saskatchewan Court of Queen’s Bench decided that the Appellant had been the children’s primary care caregiver for the one and a half year period before the November 2016 decision. The court decided it would in the best interests of the children to remain in the primary care of the Appellant on an interim basis.^{Footnote 15} The court decided that the Added Party would have parenting time every second week commencing on Thursdays after school until Sunday evening, unless Monday was a school holiday, at which time the Added Party’s parenting time would be extended to Monday evening. The Added Party would also have the children in his care every Tuesday evening after school until 7:00 p.m.

[25] The Appellant and Added Party testified that the November 2016 parenting arrangement stayed in place until October 2018. They went to mediation and they have had joint custody of the children since October 2018. They rotate custody of the children on a weekly basis.

[26] The Added Party disputed some of the findings in the court’s decision. He disputed the finding that he refused parenting time with the children from April to November 2015. The judge hearing the application was not dealing with the test for a DCCB. But both parties had an opportunity to present their evidence and a decision was made that the Appellant had been the children’s primary caregiver since April 2015. I place significant weight on the court’s finding that the Appellant had been the children’s primary caregiver since April 2015.

[27] The Appellant testified that the children always resided with her. She said that she was the primary caregiver for the children after she and the Added Party separated in September 2013. The children were with her all the time. She returned to work in October 2013, but she remained the children’s primary caregiver. She said that she financially supported the children. The Added Party was obligated to pay $539.00 per month in child support under a December 2016 court order, but he fell behind on his child support payments.^{Footnote 16} She said the children were covered under her medical plan before 2018. She said that she paid for the children’s food before October 2018. She confirmed that the Added Party complied with the custody order made in November 2016, except at times where he worked.

[28] The Appellant’s sister testified that the Appellant paid for the children’s extra-curricular activities and clothing. The Appellant paid for the majority of their expenses and nurtured the children.

[29] The Added Party testified that he contributed to household expenses after the September 2013 separation. He paid grocery bills and utilities. He said that he did not pay child support from September 2013 to April 2015, but he paid for food and clothing and the children’s needs. He said he took the children to school from 2013 to 2018 and was involved in their extra-curricular activities. He said the Appellant’s job required travelling and he would take care of the children. He said that he was the primary caregiver for the children from September 2013 to April 2015, but the Appellant denied him access to the children. He said that he paid for the children’s expenses when they were under his care from April 2015 to October 2018.

[30] The Added Party’s father testified that the Added Party provided care to the children. He never lost custody of them. He assisted the children with extra-curricular activities. He also said the Added Party cooked and cleaned for the children.

[31] The Added Party’s mother testified that the Added Party always had custody of the children, even though it was not full custody. He took care of the children and contributed to their expenses.

[32] I find that the evidence showed that the Appellant had primary custody and control of the children from the September 2013 to October 2018. The Saskatchewan Court of Queen’s Bench confirmed that she had primary custody and control of the children from at least April 2015. However, I am also satisfied that the Appellant also had primary custody and control of the children from September 2013 to April 2015. This is because the children lived with her and she cared for them when she was not working.

[33] I am satisfied that the Appellant was primarily responsible for the day to day care of the children from September 2013 to October 2018. She was the one primarily responsible for ensuring that the children had the essentials for day-to-day living, including food, clothing, and a place to live.

[34] I acknowledge that the Added Party had access to the children. But I am more interested in who had primary or actual responsibility for the day to day activities of the children, and I am satisfied that that the Appellant had such responsibility. I do not mean to suggest that the Added Party has not fulfilled his parental responsibility. I accept the Added Party’s evidence and that of his parents that he has maintained contact with children and provided care for the children. But when I compare his every-day responsibilities to those carried out by the Appellant, I cannot find, on these facts, that the Added Party had primary custody and control of the children.

[35] The questions now becomes whether the CPP allows me to award the Appellant a DCCB going back to September 2013.

The law does not allow the Appellant to receive a DCCB starting in September 2013

[36] I cannot award the Appellant a DCCB starting in September 2013. I agree with the Minister that the Appellant should begin receiving a DCCB in February 2017, which is eleven months before she applied for the benefit.

[37] Subsection 74(2) of the CPP talks about how far back the Minister can go in paying a DCCB. The Minister said that the wording of subsection 74(2) of the CPP is clear. The DCCB can be awarded no more than eleven months before the Appellant applied for the benefit. The Appellant applied for the DCCB in January 2018. This means she is entitled to receive a DCCB as of February 2017 because she was the parent with primary custody and control of the children.

[38] When I interpret the CPP, I must apply the “modern principle” of statutory interpretation. This means that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”^{Footnote 17} I have to consider the total context of the section of the law that I am interpreting, even where the wording of the statute seems clear.^{Footnote 18}

[39] When I read subsection 74(2) of the CPP it says the benefit is payable in the case of a “disabled contributor” no more than eleven months before the application was received.

[40] It could be argued that the eleven month maximum retroactivity period does not apply to the Appellant because she is not a disabled contributor.

[41] However, when I am interpreting subsection 74(2) of the CPP, I must seek to interpret it in a manner that best meets the overriding purpose of the CPP.^{Footnote 19}

[42] When I look at the purpose of a law, I am entitled to presume that all laws have a purpose. In so far as the language of the law permits, I should adopt an interpretation that is consistent with or promotes the purpose of the law.^{Footnote 20}

[43] When I consider the purpose of the DCCB, I believe that awarding a DCCB to the Appellant going back to September 2013 would not promote the purpose of the DCCB. Courts have looked at the purpose of the DCCB. Courts have ruled that the DCCB belongs to the child. It does not belong to either parent.^{Footnote 21} The CPP is benefits conferring legislation and should be given a large and generous interpretation.^{Footnote 22} The CPP sets out a program of benefits for those who experience a loss of earnings because of retirement, disability, or death of a wage-earning spouse or parent.^{Footnote 23} The DCCB is a benefit for a child of a disabled contributor, payable to offset the costs associated with caring for a child of a disabled contributor.^{Footnote 24}

[44] When I am interpreting the DCCB, my focus is on the child and not the parents. The Added Party received the DCCB beginning in May 2012. If I were to award the Appellant a DCCB beginning in September 2013, the Added Party would presumably have to pay back benefits he had received from that date forward. However, the evidence showed that the Added Party provided at least some financial support to the children. The Appellant would certainly benefit from receiving a DCCB from September 2013 forward. However, the children would have received some financial support from the Added Party since September 2013 partly because he had received a DCCB.

[45] When I interpret a statute, I have to conduct a consequential analysis. I have to consider whether an interpretation that says the Appellant can receive a DCCB going to back to September 2013 would lead to an absurd result. I have to consider questions such as whether such an interpretation would lead to an unreasonable or inequitable result or is incompatible with other provisions of the CPP.^{Footnote 25}

[46] I find that interpreting the DCCB to allow the Appellant to receive it from September 2013 to August 2018 would be incompatible with other provisions of the CPP. The CPP says that an application has to be made in order to receive a benefit.^{Footnote 26} There are exceptions to this rule for the post-retirement disability benefit.^{Footnote 27} However, I do not see such an exception when it comes to the DCCB. Subsection 74(1) of the CPP specifically references an application made on behalf of a child. It does not say that the application is being made on behalf of a parent. The statute treats the children as being the recipient of the benefit and not the parent with custody and control. In addition, the CPP has other benefits that require an application being made and there are maximum retroactive periods to receive those benefits. For example, the maximum retroactive period for a CPP disability pension application is eleven months.^{Footnote 28} The maximum retroactive period for a CPP survivor’s pension is eleven months.^{Footnote 29} Allowing the Appellant an extension of her retroactive period would undermine the statutory regime of the CPP, which contains explicit rules on how far back benefits can be paid.

[47] I do not see any reason why I should extend the maximum retroactive period because the Appellant was not aware of the DCCB until the Minister wrote to her in December 2017. The Tribunal’s Appeal Division has decided that there are no provisions in the CPP to extend the 11 month period of retroactivity for the DCCB.^{Footnote 30} The Federal Court has ruled that there is no legal obligation on the part of the Minister to inform individuals of their entitlement to a benefit, including the DCCB.^{Footnote 31}

[48] The Tribunal is created by law. It only has the powers granted to it by its governing statute. I do not have jurisdiction to deal with the issue of whether the Appellant feels that she received erroneous advice from the Minister because she was not informed of her potential eligibility for a DCCB until December 2017.^{Footnote 32}

[49] I therefore find that the Appellant cannot receive a DCCB beginning in September 2013. I agree with the Minister that she can begin receiving a DCCB in February 2017.

Conclusion

[50] I find that the Appellant is eligible to receive the DCCB from February 2017 to August 2018.

[51] This means the appeal is partially allowed.