Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

[2] The Appellant, S. M., isn’t eligible for a Canada Pension Plan (CPP) survivor pension. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant was married to N. C. (Contributor) in June 1994. They separated in March 2018 and their divorce became final in October 2018. The Contributor died on May 30, 2020.^{Footnote 1}

[4] The Appellant says she was married to the Contributor for 24 years and only divorced for 20 months. Being divorced did not stop her from being the Contributor’s wife. It was not her choice to be divorced. Even though they lived apart she continued to take care of the Contributor as his wife.

[5] The Minister says The Appellant and the Contributor were divorced. They did not live together as common law partners. The Minister says that means she cannot be his survivor under the CPP.

What the Appellant must prove

[6] For the Appellant to succeed, she must prove she is the Contributor’s survivor under the CPP.

[7] The Appellant agreed that she was not married to the Contributor at the time of his death. That means the Appellant could only be the Contributor’s survivor if she was his common-law partner at the time of his death and had been for at least 12 months.

Reasons for my decision

What the CPP says about the Survivor Pension

[8] A CPP survivor’s pension is payable to the survivor of a deceased contributor who made base contributions to the CPP for not less than the minimum qualifying period.^{Footnote 2} There is no issue regarding the Contributor’s base contributions.

[9] A “survivor” is a person who was legally married to the contributor at the time of his death. However, if the contributor was in a common-law relationship at the time of his death, then the “survivor” is the contributor’s common-law partner.^{Footnote 3}

[10] The term “common-law partner” means a person who was cohabiting with the contributor in a conjugal relationship at the time of the contributor’s death, having so cohabited with the contributor for a continuous period of at least one year.^{Footnote 4} In other words that they lived in a marriage-like relationship during the whole year before the contributor’s death.^{Footnote 5}

[11] The factors that are relevant to determining whether two people were cohabiting in a conjugal relationship include^{Footnote 6}:

1. a) 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. b) Sexual and personal behavior, 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. c) Services, including the roles they played in preparation of meals, doing laundry, shopping, conducting household maintenance and other domestic services;
4. d) Social, including whether the parties participated together or separately in neighbourhood and community activities and their relationship with each other’s family members;
5. e) Societal, including the attitude and conduct of the community towards each of them as a couple;
6. f) Support, including the financial arrangements between the parties for provision of necessaries and acquisition and ownership of property; and
7. g) Attitude and conduct concerning any children.

I find the Appellant and Contributor were not common law partners in May 2020 when the Contributor died

[12] The evidence does not show the Appellant and Contributor lived in a marriage-like relationship at the time of his death.

[13] The Appellant’s friend (Witness) testified. She said she knew the Appellant and the Contributor for many years. They attended the same church and she was involved with their family before and after the divorce. In her opinion the Appellant was a “fantastic” and “great” wife. She was always there for the Contributor when he needed her even after the divorce.

[14] In the last year of the Contributor’s life he was very sick. The Witness said she knew they were not married but the Appellant continued to take care of the Contributor. She said the Appellant told her she went to the Contributor’s home every day. The Appellant took care of his household and personal needs.

[15] The Witness said many people in the community did not know the Contributor and the Appellant were divorced. The Contributor was a minister and he did not share such personal information with all members of the community. He attended social events with the Appellant and many people in the community continued to think of them as a married couple.

[16] The Appellant said the Contributor decided he wanted a divorce. In early 2018 they sold their home and began to live apart from each other. She lived with her sister and he rented an apartment. One of their daughters lived with the Contributor until his death.

[17] The Appellant said the divorce went ahead without her consent. She did not want to be divorced and did not share information about the divorce with people in the church or community. She said she continued to feel responsible to care for the Contributor. She said she went to his apartment every day. She cooked and cleaned as a good wife would.

[18] The Appellant wrote that she would stay at the Contributor’s apartment when he was away. She cleaned and made sure there was food in the apartment. She said the week before he became ill he started to talk about getting married again. ^{Footnote 7} She said they lived apart but were slowly trying to get back together.

[19] Her evidence about her time at the Contributor’s apartment became clearer as she spoke. She made food for him and their daughter and she delivered it to them. She also cleaned the apartment for them. The Appellant and the Contributor took turns driving their daughter to and from school and other events. Because of all of these activities she was at the Contributor’s home most if not all days.

[20] Regarding finances the Appellant said they each took care of their own expenses. They shared one account and she could use that for groceries.^{Footnote 8} They each had their own vehicles and were no longer the beneficiaries of each other’s insurance. He is named on her life insurance as the guardian of the children who are the beneficiaries. They had a casual agreement to share their daughter’s expenses.

[21] The Appellant said she had an intimate, physical relationship with the Contributor. Her description about that part of their relationship was vague. She said she sometimes stayed in his apartment and they began to talk about getting together again. She said they had an intimate relationship before but when he became disabled he needed medication and was not able to go back to a physically intimate relationship. I could not determine from her testimony when they stopped having an intimate relationship or if they resumed that relationship before his death.

[22] The Appellant said she and the Contributor were faithful to each other. That did not change when they divorced.

[23] The Appellant said she socialized with the Contributor. They continued to go to community events together and they did not tell many people about the divorce. The Contributor was very well respected. Many close friends and others from the community visited him and took him food when he became ill and had to stop working.

[24] The Appellant stayed very close to the Contributor. When he became very ill he gave her name to the hospital. She took time off work or asked their children to check on him when she could not be there. She said if it had been her decision she would have still been married to the Contributor.

The evidence does not support the Appellant’s position

[25] I find the Appellant is not the Contributor’s survivor within the meaning of the CPP. I appreciate that she wanted to be his wife and continued to give him support and care after the divorce. However, they were not common-law partners at the time of his death and for the last 12 months of his life.

[26] The Appellant was very clear that she did not want to be divorced. She did not agree to the divorce and believed she was still the Contributor’s wife. As such she continued to feel responsible for him. However, both parties must intend to live in a common-law relationship. A common-law relationship ends (or does not exist) when either party regards it as being at an end and, by his or her conduct, demonstrates his intention in a convincing manner.^{Footnote 9}

[27] I find the evidence about the Contributor’s conduct does not show he intended to live as the Appellant’s common-law partner. I make this finding because of the Contributor’s following conduct.

• He divorced the Appellant.
• He chose to lived separate from the Appellant.
• He maintained separate financial accounts with the exception of a joint account for groceries.
• He did not ask the Appellant to consider “getting back together” until the last month of his life.
• He had his own vehicle.
• He shared responsibility for their children in a manner similar to divorced people.

[28] I recognize the Appellant considered herself the Contributor’s wife even though they were divorced. She continued to take care of him and saw him every day when she went to his apartment to take food for him and their daughter or to take their daughter to school. Even though she wanted to remain married and be a “couple” he did not demonstrate that until the last month of his life. This is shown by the fact that he asked her to consider living together.

[29] Based on all of the evidence I can appreciate the Appellant continued to maintain a relationship with the Contributor. She clearly cared for him and took care of him. Unfortunately, he did not behave as if he intended to live as common-law partner until, possibly, that last month of his life when he talked to her about living together.

Conclusion

[30] I find that the Appellant isn’t eligible for a CPP survivor pension.

[31] This means the appeal is dismissed.