Other Canada Pension Plan (CPP)

Decision

[1] The appeal is allowed.

[2] The Appellant, C. P., is eligible for a Division of Unadjusted Pensionable Earnings (“DUPE”, or “CPP Credit Split”). This Canada Pension Plan (“CPP”) Credit Split is for the period of January 1993 to December 2006. This decision explains why I am allowing the appeal.

Overview

[3] The Appellant is 54 years old. He is now married to K. P. However, he used to be married to M. G. They married on October 18, 2003. Their divorce took effect on October 21, 2016. He says they had a common-law relationship for many years before marrying.

[4] The Appellant applied for the CPP Credit Split on April 16, 2021. He wanted his and M. G.’s CPP contributions equally divided for the time they were married. He also wanted their CPP contributions divided for the time they were common-law spouses.

[5] The Minister denied the Appellant’s initial application. The Minister denied it again upon reconsideration. The Appellant then appealed to the Tribunal.

[6] The Appellant says he lived in a common-law relationship with M. G. for 10 years before they finally married. He says he eventually provided the documents required by the Minister, but the Minister was not willing to take another look at his application. It was hard for him to get those documents because he had lost his original copies and M. G. was no longer in Canada. He also had some difficulty providing accurate information as he was recently diagnosed with Stage 4 cancer. Extensive chemotherapy, a stem cell transplant, and ongoing injections also affected his memory.

[7] The Minister says the Appellant didn’t provide the requested documents before the reconsideration decision. As a result, the Minister says the Appellant didn’t meet the requirements of the Canada Pension Plan. 

[8] M. G. was not added as a party to this appeal. While she appears to be living in the U.S.A., her exact whereabouts are unknown.^{Footnote 1}

What the Appellant must prove

[9] For the Appellant to succeed, he must prove that he was married to M. G. In addition, or in the alternative, he can succeed if he can prove he was cohabiting in a conjugal relationship with M. G. In either case, the relationship must have lasted for a continuous period of at least one year.^{Footnote 2}

Reasons for my decision

[10] I find that the Appellant cohabited in a conjugal relationship with M. G. from October 18, 1993, to January 1, 2007. This took the form of a common-law relationship up to October 18, 2003. They married on that date, with a permanent separation occurring on January 1, 2007.

[11] I will first consider the period of marriage.

The Appellant’s marriage to M. G. creates an entitlement to a CPP Credit Split

[12] I do not know why the Minister refused to accept that the Appellant had married M. G. His appeal materials included an original certified copy of the marriage certificate.^{Footnote 3}

[13] The marriage certificate says that the Appellant and M. G. married on October 18, 2003.^{Footnote 4} I see no reason to question the marriage certificate. I find that the marriage took place on October 18, 2003.

[14] The Appellant also filed a copy of the court order granting a divorce from M. G. The court made the order on September 20, 2016. The divorce became effective on October 21, 2016.^{Footnote 5}

[15] The marriage between the Appellant and M. G. has ended. The divorce order is clear. The Appellant’s current spouse, K. P., gave evidence at the hearing. The Appellant’s understanding is that M. G. has also remarried.

[16] However, the key date is not the divorce date. I must instead look at the separation date. The divorce order does not give a separation date.

[17] When he appealed to the Tribunal in October 2022, the Appellant said M. G. left him in January 2007.^{Footnote 6} He affirmed this at the hearing. He said she told him that she was going to the store for some cigarettes. However, she never came back.

[18] The Appellant did not provide this separation date before. When he initially applied for the CPP Credit Split in April 2021, he said that they last resided together in 2014.^{Footnote 7} In August 2021, he said M. G. was living in Illinois in 2009.^{Footnote 8}

[19] The separation date given by the Appellant in 2021 is very different from what he gave in October 2022 and at the hearing. However, he has also repeatedly explained that he was unable to recall the correct dates because of his health challenges.

[20] I accept the Appellant’s explanation.

[21] In December 2020, the Appellant was diagnosed with Stage 4 cancer (non-Hodgkin’s lymphoma). The cancer was very aggressive. He had 12 rounds of chemotherapy at 3-week intervals. He had a stem-cell transplant. He was released from hospital in June 2021, but nurses still attended his home. His side effects included vomiting, exhaustion, and memory loss.^{Footnote 9}

[22] After those treatments, the Appellant continued getting Rituxan maintenance injections every four months. He believes these also contribute to his memory issues. He said he had to guess at the dates and hoped they were correct.^{Footnote 10} However, once he obtained the marriage certificate and the divorce order, he could provide the relevant dates with more certainty. He was also eventually able to get some information from his former stepdaughters.

[23] I find that the separation date was January 1, 2007. The Appellant could not provide a specific date in that month. As the onus is on him to prove the cohabitation periods, I can’t find that the separation occurred later than the first day of the month.

[24] This separation date is consistent with the Appellant’s previous statement that M. G. was in Illinois in January 2009. It is also consistent with his evidence that the relationship deteriorated rapidly after they married in October 2003. At the hearing, he said their financial difficulties stressed the marriage. His chart of CPP contributions shows that his last qualifying earnings were in 2004.^{Footnote 11} The Appellant said they lost their home in their last year together and had to live in public housing.

[25] The Appellant testified that he and M. G. had no periods of separation during their relationship. The January 2007 separation was a surprise. When she left him, he thought she was just going to the store.

[26] I conclude that the Appellant cohabited in marriage with M. G. from October 18, 2003, to January 1, 2007. As this was a continuous period of at least one year, it is enough to trigger the division of CPP pension credits.^{Footnote 12}

[27] I will now consider whether the Appellant and M. G. cohabited in a conjugal relationship for a continuous earlier period.

The Appellant’s common-law relationship with M. G. extends the period covered by the CPP Credit Split

[28] The period covered by the CPP credit split can be extended if the Appellant and M. G. cohabited in a conjugal relationship before they married.^{Footnote 13}

[29] The Appellant said his relationship with M. G. was stronger before they married. This suggests that they may have cohabited in a conjugal relationship before October 18, 2003. As a result, I asked him about the nature and timing of that relationship.

[30] The Appellant said he met M. G. in 1990. Around 1992, he helped her out with a place to stay. He did this because her previous relationship ended and she was a single mother with two young children. However, he and M. G. eventually began a relationship of their own.

[31] Unlike the separation date, the Appellant has been more consistent with the start date of their common-law relationship. In April 2021 and July 2021, he said their common-law relationship started on October 18, 1993.^{Footnote 14} In August 2021, he said they moved in together in 1993.^{Footnote 15} When he filed his appeal with the Tribunal, he again said they started living in a common-law relationship on October 18, 1993.^{Footnote 16}

[32] However, the mere fact that two people share a household does not mean that they were cohabiting in a conjugal relationship. To address that, I must look at the nature of their relationship. A 2001 decision called Betts makes this task easier.^{Footnote 17}

Applying the Betts Factors

[33] The Betts decision sets out which factors are usually relevant to deciding whether two people were cohabiting in a conjugal relationship. I will call these the “Betts Factors”. The Betts Factors are:

(a) Financial interdependence

(b) Sexual relationship

(c) Common residence

(d) Purchasing gifts on special occasions

(e) Sharing of household responsibilities

(f) Shared use of assets

(g) Shared responsibility for children

(h) Shared vacations

(i) Expectation of mutual dependency

(j) Beneficiary of will

(k) Beneficiary of insurance policy

(l) Where clothing was kept

(m) Care for one another when ill, and knowledge of medical needs

(n) Communications between the parties

(o) Public recognition

(p) Attitude and conduct of the community

(q) Marital status on various documents

(r) Funeral arrangements

[34] Not all Betts Factors are relevant or persuasive in every case. The evidence is rarely completely for or against a common-law relationship. However, complete certainty is not required. The onus is on the Appellant to prove that he was cohabiting in a conjugal relationship with M. G. before October 18, 2003. Many of the Betts Factors support this conclusion.

[35] While I see little or no documentary evidence with respect to the Betts Factors, the Appellant answered many questions about his pre-marriage relationship with M. G. at the hearing. I also heard relevant evidence from K. P.

[36] The Appellant said he originally rented an apartment in his name. However, a year after M. G. moved in with her young children, she was added to the lease. He said they eventually bought a home together, a couple of years before they married. However, they lost their home shortly after marriage. They then returned to renting.  

[37] The Appellant said he and M. G. would introduce themselves as spouses when meeting other people for the first time. Friends and family members considered them to be a common-law couple. In his words, “marriage was just a formality”. He was “Dad to her kids”. He noted that when M. G. left the marriage (and the country) in 2007, her children stayed with him.  

[38] The Appellant said they filed their income tax returns as a common-law couple between 1993 and 2003. He said this had tax benefits when they were renting. He said they identified as a common-law couple on other forms too, such as those related to welfare benefits. He was also named as M. G.’s spouse at her children’s school.

[39] The Appellant said he and M. G. shared household responsibilities. They prepared meals for each other. They ate their meals together. While she did most of the shopping, this was because she was better at it than he was.

[40] The Appellant said he and M. G. bought each other gifts on special occasions. They took vacations together: he mentioned trips to Mexico and Quebec. They kept their clothing in the same place. They cared for each other during illnesses. He said that she was “by his side” when he was in hospital for treatment of a skin disease.

[41] The Appellant said he never expected the relationship with M. G. to turn out the way it did. In retrospect, he said things changed after they married. While he could not blame any one issue, he thought that financial pressures contributed.

[42] The above factors support cohabitation in a conjugal relationship between October 18, 1993, and October 18, 2003. However, I will now discuss the Betts Factors which do not support such a relationship.

[43] The Appellant said that he and M. G. did share a bank account in the earlier part of their relationship. This did not continue, although he says that he often gave her his bank card. They did not have joint credit cards, although he said he didn’t use them. They primarily relied on cash. He also admitted that they did not own any property together, other than their brief ownership of a home. She didn’t drive, so they didn’t share a car or any other vehicles. They did not have life insurance.

[44] I also considered K. P.’s evidence at the hearing. K. P. started living downstairs from the Appellant starting in May or June of 1995. She said the Appellant and M. G. were already living together at that time. She said they were a couple. K. P. and her then-husband socialized with the Appellant and M. G. until about 2005, when K. P.’s marriage ended and she moved out of town.^{Footnote 18}

[45] I found K. P.’s oral evidence reliable, as she could provide specific dates. She also admitted that there were periods (before 1995 and after 2005) when she had no contact with the Appellant. She had not intended to give evidence at the hearing. This may be why her evidence did not sound rehearsed or planned.

[46] In this case, the Betts Factors are generally in favour of cohabitation in a conjugal relationship. While some Betts Factors do not help the Appellant, those factors appear connected to his relatively unstable financial situation. He has collected disability benefits for extended periods. His CPP contributions show that his employment was very sporadic. He never earned more than $18,588.00 in a single year.^{Footnote 19} He also mentioned getting welfare benefits and employment insurance. It is no surprise that he did not have credit cards or life insurance.

[47] Given the Appellant’s circumstances, I prefer to place more weight on the Betts Factors that are less tied to affluence. For example, it is important that others saw him and M. G. as a couple long before they married. While tax incentives may have been at play, he also said they filled out forms as common-law spouses from 1993 forward.

[48] On a balance of probabilities, the Betts Factors suggest that the Appellant and M. G. did cohabit in a conjugal relationship before they married. While K. P. could only give first-hand evidence from May 1995 onward, her evidence also suggests that the Appellant and M. G. had already been cohabiting in a conjugal relationship for some time before that. The Appellant’s evidence has been consistent that such a relationship started on October 18, 1993. As a result, I accept that as the start date.

[49] I find that the Appellant and M. G. cohabited in a conjugal relationship from October 18, 1993, until they married on October 18, 2003. This is in addition to the period from October 18, 2003, to January 1, 2007.

When the credit split applies

[50] The CPP Regulations say that the CPP Credit Split period starts with the first month of the year that the parties married or started to cohabit in a conjugal relationship.^{Footnote 20} As the Appellant and M. G. started to cohabit in a conjugal relationship in October 1993 and married in October 2003, the CPP Credit Split must start with January 1993. 

[51] The CPP Regulations also say that the parties are considered not to have cohabited at any time during the year in which they started to live separate and apart.^{Footnote 21} As the Appellant and M. G. separated in January 2007, the CPP Credit Split cannot extend beyond December 2006.

[52] I find that the CPP Credit Split applies from January 1993 to December 2006.

Conclusion

[53] I find that a CPP Credit Split must be performed for the Appellant and M. G. for the period from January 1993 to December 2006.

[54] This means the appeal is allowed.