Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

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

Overview

[3] The Appellant lived in a common law relationship with P. C. (Contributor) from 1984 until September 1, 2018. The Contributor died on July 16, 2020.

[4] The Appellant says she separated from the Contributor but maintained a relationship with him. She said she considered them to still be common law partners when he died. It was not her choice to separate from him. Even though they had to live apart she says they were still common law partners.

[5] The Minister of Employment and Social Development (Minister) refused the Appellant’s application.^{Footnote 1} The Minister says the Appellant and the Contributor were not common law partners and did not live together when he died and for the year before his death. The Minister says that means she cannot be his survivor under the CPP. The Appellant appealed the Minister’s decision to the Social Security Tribunal (Tribunal).

What the Appellant must prove

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

Reasons for my decision

[7] The Appellant and the Contributor didn’t live together at the time of his death and for one year before. The Appellant is not the Contributor’s survivor under the CPP and is not entitled to a survivor’s pension.

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}: 

• Shelter, including considerations of whether the parties lived under the same roof, slept together, and whether anyone else occupied or shared the available accommodation; 
• 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;  
• Services, including the roles they played in preparation of meals, doing laundry, shopping, conducting household maintenance and other domestic services; 
• Social, including whether the parties participated together or separately in neighbourhood and community activities and their relationship with 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; and 
• Attitude and conduct concerning any children.

The Appellant and Contributor were not common law partners in July 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. Beginning in September 2018 they did not live under the same roof. They had no intimate, personal relationship. They did not support each other financially or provide household or domestic support for each other. They owned property jointly and divided those expenses. Otherwise each one took care of his or her own expenses. They did not socialize as a couple. They did not have shared care for their children or other family members.

The Appellant’s evidence

[13] In September 2018 the Appellant moved out of the house she shared with the Contributor. She said she moved because she changed jobs and would have had a very long commute if she continued to live with the Contributor.

[14] In August 2020 the Appellant wrote that she separated from the Contributor because of “irreconcilable differences”.^{Footnote 7}  In June 2021 she filed a revised statutory declaration and said their separation was involuntary.^{Footnote 8}

[15] The Appellant’s oral testimony was incomplete and not consistent at times. She had to reconsider some of her early statements and she revised them. With some statements it was not a concern and could be taken as “blurred” memory from a difficult period in her life. But, some of her testimony was very important to the issue on appeal.  I allowed her the opportunity to consider her earlier comments and provide additional explanation where she felt she could.

[16] I do not believe the Appellant intended to lie or give false statements. I do think she intended to only speak about the things she felt would support her position. Specifically it was clear she wanted to stress information she felt would show that she maintained a common law relationship with the Contributor even though they did not live together.

[17] There were things the Appellant said in her testimony that changed when I asked her if she could provide more detail. The following are examples of some of what the Appellant said.

• I asked her why she said they separated for irreconcilable differences. She said she did not realize it would make a difference. Her estate lawyer told her it wouldn’t matter. She couldn’t explain why she described the separation that way if she thought the common law partnership was going to continue.
• She said she maintained an intimate relationship with the Contributor after she moved away. She said she spent every second weekend with the Contributor. I asked her how often they stayed together and where. I also asked her to describe their relationship when she was there. She clarified that they probably didn’t have an intimate relationship after September 2018. She said they did not socialize at all and she did not actually go every second weekend.
• The Contributor continued to live in the home they owned together. The Appellant first said she stayed with him every second weekend. Later she said she went to his place for at least part of a day every second weekend or so. Finally she said she saw him a couple of times a month until November or December 2019. She then visited him once in January 2020 and once in March 2020 with her son. She did not visit him at any other time after November or December 2019.
• She said she took the Contributor to medical appointments and got his medicine for him. She showed calendar notes for August and July of 2018 to prove that she went to his appointments with him.^{Footnote 9} She later said she did not take him to any appointments after she moved away. She also confirmed that she did not deliver his prescriptions to him. She made arrangements for a friend to deliver a prescription. From her description it seemed that happened only once after September 2018.

[18] The Appellant said she continued to have a close relationship with the Contributor. In the first year after they stopped living together they remained close. He would make dinner for her when she visited and she kept personal belongings in the house. The exchanged Christmas gifts and she is the administrator of his estate. After about one year things became more difficult. The Contributor would say terrible things to the Appellant and she became worried about spending time alone with him. She stopped visiting as much and preferred to go when her son or daughter could be present.

[19] The Appellant said they did not have any friends in the community. They did not socialize and she did not think anyone in the community would know them as a couple.

[20] The Appellant and Contributor have two adult children who live on their own. The Appellant and Contributor are not responsible for their living arrangements or expenses.

[21] Regarding finances the Appellant said they each took care of their own expenses. The Appellant also paid her share of some expenses for the property they owned jointly. 

[22] The Appellant said she stayed very close to the Contributor until November/December 2019. She said they talked about him moving to her apartment but did not have any plans in place. They did not discuss it again after she stopped visiting him in late 2019.

The contributor’s evidence

[23] There is very little evidence from the Contributor but he did submit personal information when he applied for a CPP disability pension. The Appellant challenges the accuracy of the evidence on file.

[24] The Contributor applied for a CPP disability pension in November 2018.^{Footnote 10} He said his marital status was “single”. He confirmed he was in a common law relationship from 1984 to September 2018. The Appellant objected to this document. She questioned whether the handwriting is the Contributor’s. She filed a handwritten note she said the Contributor wrote.^{Footnote 11} She said she knew the Contributor was applying for disability benefits but challenged the statement that he said he was single.

[25] The Appellant said she wanted illustrate that the Contributor may not have completed the application for CPP disability. Therefore, he may not have identified himself as single. She submitted that may mean he did not consider himself single. Unfortunately I do not agree with the Appellant. The note the Appellant submitted is unsigned. She says it is the Contributor’s writing. The CPP disability application is printed. The Appellant suggests they may have been completed by different people. There is no evidence to support what the Appellant suggests. Even if the Contributor asked someone else to complete the form there is no evidence to contradict the statements in the form.

The evidence does not support the Appellant’s position

[26] I find the Appellant is not the Contributor’s survivor within the meaning of the CPP. I appreciate that she wanted to be considered his common-law partner at the time of his death and for the last 12 months of his life.

[27] I find the evidence about the Appellant and Contributor’s relationship does not show they were common-law partners when he died and for the year before his death. The Appellant’s testimony is not consistent with other information on file including her own statements.

[28] There is no evidence they considered the separation temporary or involuntary. The Appellant was clear that she chose not to visit him after late 2019. Her testimony was also very clear that she was not comfortable to be alone with him after November or December 2019 – seven or eight months before his death.

[29] I can appreciate the Appellant wanted to maintain a relationship with the Contributor when they first separated. Unfortunately, the evidence does not support that they actually maintained a marriage-like relationship. They did not live together. They owned property together but she said they had no plans to resume their relationship. She said he became different after she moved out. He treated her badly. She visited him once or twice a month. Their relationship became even more strained in late 2019. Her description of their contact in late 2019 was more consistent with the notion they separated because of irreconcilable differences as she first stated in her declaration.

[30] The Appellant and the Contributor did not live together in July 2020 when he dies. They had not seen each other in person since March 2020. Before that their relationship was very difficult and the Appellant was not comfortable to be alone with him. I find they were not common law partners as of September 2018 when the Appellant moved away. The Appellant was not the Contributor’s surviving spouse.

Conclusion

[31] The Appellant isn’t eligible for a CPP survivor pension.

[32] This means the appeal is dismissed.