Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Reasons and decision

Introduction

[1] The Appellant was receiving a Guaranteed Income Supplement (a supplement) under the Old Age Security Act (OAS Act). The amount of the supplement was calculated on the basis that she was single. In 2015 the Respondent concluded that the Appellant had been in a common-law relationship, resulting in a recalculation of the amount of her supplement and a determination that she had been overpaid $99,523.45 for the period July 2000 to May 2014, when the alleged common-law partner died. The Respondent demanded return of the overpayment. That decision was maintained upon reconsideration, and the Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).

[2] This appeal was decided on the basis of the documents and submissions filed for the following reasons:

1. The Tribunal decided that a further hearing was not required.
2. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

The law

[3] Under Part 2 of the OAS Act a supplement is paid to a recipient of an OAS pension who meets certain qualifications. The amount of the supplement depends on the person’s income. If the person has a spouse or a common-law partner, the spouse or partner’s income is taken into account in determining entitlement, and results in the amount of the supplement being lower than if the person was single.

[4] “Common-law partner” is defined in section 2 of the OAS Act as “a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.” The term is defined similarly in subsection 2(1) of the Canada Pension Plan (CPP).

[5] Subsections 15(1), 15(1.1) and 15(9) of the OAS Act state that:

(1) Every person by whom an application for a supplement in respect of a payment period is made shall, in the application, state whether the person has or had a spouse or common-law partner at any time during the payment period or in the month before the first month of the payment period, and, if so, the name and address of the spouse or common-law partner and whether, to the person’s knowledge, the spouse or common-law partner is a pensioner.

(1.1) If the requirement for an application for payment of a supplement for any month has been waived under subsection 11(4) for a person who did not have a spouse or common- law partner immediately before the last payment period in respect of which a supplement was paid or, if no supplement was ever paid to the person, immediately before the last payment period in respect of which an application for payment of a supplement was received but who has a spouse or common-law partner immediately before the current payment period, the person shall notify the Minister without delay of the date of that change, the name and address of the spouse or common-law partner and whether, to the person’s knowledge, the spouse or common-law partner is a pensioner.

(9) Every applicant shall inform the Minister without delay if they separate from, or cease to have, a spouse or common-law partner, or if they had a spouse or common-law partner at the beginning of a month, not having had a spouse or common-law partner at the beginning of the previous month.

[6] Subsection 37(1) of the OAS Act states:

37. (1) A person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.

Issue

[7] The Tribunal must determine if the Appellant had a common-law partner and, if so, the dates of the relationship.

Evidence

[8] The Appellant was born in Nova Scotia in July 1931. She continues to live there. She applied for a CPP retirement pension in July 1996. In the application she gave her marital status as “widow” (GD2-146).

[9] The file indicated that the Appellant began receiving a supplement in January 1998, and that the amount was calculated on the basis that she was single.

[10] The Appellant applied for a CPP survivor’s pension on June 9, 2014 (GD2-120-125). In the application under the heading “Information About Your Deceased Spouse or Common-Law Partner” she stated that R. J. was born on X X, X, and died on May 23, 2014. She stated that his marital status at the time of his death was common-law. His address at the time of his death was X X X in X, Nova Scotia. Under the heading “Information About You (The surviving spouse or common-law partner)” the Appellant stated that this was also her address; that she and the deceased started living together on March 15, 1999, and that they were still living together at the time of his death.

[11] The Appellant also applied for a CPP death benefit on June 9, 2014. She provided the same information about Mr. R. J., and stated twice that she was his common-law wife (GD2-126-130). She submitted Mr. R. J.’s death certificate issued by R. O. Funeral Home, which stated that his marital status was “Divorced” (GD2-135).

[12] On June 13, 2014, the Appellant made a Statutory Declaration of Common-Law Union in which she stated that she and Mr. R. J. lived together from June 15, 1997, to May 23, 2014. As evidence of their “conjugal relationship as common-law partners” the Appellant stated “take care, prepare all meals, when sick bathed and fed, Power of Attorney” (GD2-97).

[13] The Appellant submitted a second application for a survivor’s pension on June 14, 2014, (GD2-106-110). She provided similar information except that she checked off the option indicating that Mr. R. J. was divorced rather than living common-law at the time of his death. However, she also stated and that they lived together from June 15, 1997, to the time of his death.

[14] On July 28, 2014 the Appellant filed another application identical to the one submitted on June 14. Although they are different documents, they were both signed by the Appellant on June 11, 2014 (GD2-113-119).

[15] That same day the Appellant submitted a second application for a death benefit, signed by her on July 25, 2014, and describing herself as Mr. R. J.’s common-law partner (GD2-131-133). She was informed by letter dated August 18, 2014, that the death benefit had already been paid to her (GD2-137).

[16] On August 18, 2014, the Respondent wrote to the Appellant regarding her three applications for a survivor’s pension. It stated that “to establish your entitlement, you must provide us with proof of your cohabitation in a conjugal relationship”. She was asked to confirm the start date of the common-law relationship; to submit two pieces of documentation to prove the relationship; and to provide an original or certified copy of the Power of Attorney documents referred to in the Statutory Declaration of Common-Law Union (GD2-100-101).

[17] On October 6, 2014, the Respondent informed the Appellant that her application could not be approved because she had failed to provide the requested information (GD2-98-99).

[18] The Appellant had several telephone conversations with Service Canada in September and October, 2014, during which she was given advice as to how she could prove common-law status. She stated that she was unsure as to what else she could provide, and that “they lived at the same address but it was not like they were married and that he was a lot older than her by 16 years”. She was advised to request reconsideration of the decision to deny her application (GD2- 74-75, 80).

[19] During the application and reconsideration stages, the Respondent obtained the following relevant documents. Some were submitted by the Appellant as evidence of her common-law relationship with Mr. R. J., while others were obtained independently by the Respondent through property and internet searches:

1. A Decree Absolute which indicated that Mr. R. J. was divorced in 1962 (GD2- 37).
2. A conveyance of vacant land by Mr. R. J. to the Appellant, dated May 11, 1995. The land is described as being part of a subdivision of lands owned by the Appellant, Mr. R. J. and two others, and the conveyance was “solely for the purposes of consolidation with an abutting unregistered parcel” (GD2-51-55).
3. A general and enduring Power of Attorney executed by Mr. R. J. on February 3, 1998, naming the Appellant as his attorney and as his guardian authorized to give consent or directions respecting medical treatment if he was unable to do so (GD2-88-91).
4. A Power of Attorney executed by Mr. R. J. on September 2, 1999, appointing the Appellant as his attorney to make “all of my regular banking transactions in both my chequing account and my savings account” at the local Royal Bank of Canada branch (GD2-84).
5. An obituary for L. (J.) C. who died on June 28, 2010, which stated that she was survived by her brother “R. J.” but did not indicate that he had a spouse or common-law partner and did not mention the Appellant (GD2-63).
6. A document signed on July 13, 2010, by the Appellant as the legal representative of Mr. R. J., authorizing her to deal with CRA for income tax matters for past, present and future tax years (GD2-86-87).
7. An obituary for B. E. who died on March 20, 2012, which stated that she was survived by her brother R. J. but did not indicate that he had a spouse or common-law partner and did not mention the Appellant (GD2-65).
8. Mr. R. J.’s Last Will and Testament executed on July 4, 2013 (GD2-13-23) which contained the following provisions that are relevant to this appeal:
   1. He appointed “my friend, R. K.” as executrix and trustee.
   2. He bequeathed to “my friend, R. K.” his motor vehicles, stereo equipment, itemized lawn and garden tools and machinery; an oil painting; a lamp, and all of the personal belongings remaining at X X X (the Appellant’s home) unless dealt with elsewhere in the will.
   3. He bequeathed $81,000.00 and 1000 shares in Emera Inc. to the Appellant.
   4. He bequeathed personal items and land to the Appellant’s two younger children, T. K. and K. W.
   5. He bequeathed $12,500.00 each to three of the Appellant’s grandchildren;$10,000.00 to a friend and $1000.00 each to five charities.
   6. He left the residue of his estate to his daughter.
9. Mr. R. J.’s income tax return for 2013, filed before his death, in which he indicated that he was single (GD2-81-83).
10. A Grant of Probate to the Appellant for Mr. R. J.’s will and estate, dated September 16, 2014 (GD2-41).
11. A letter from Mr. R. J.’s doctor, Dr. L. Bonang, dated October 31, 2014, certifying that Mr. R. J. was living in a common-law relationship with the Appellant “prior to his death” (GD2-71).
12. A letter from S. Parlee-Shrider, RN, Mr. R. J.’s care co-ordinator for the years before his death. She stated that she had visited the Appellant and Mr. R. J. numerous times “and have witnessed [the Appellant’s] excellent caregiving of R. J. It is my understanding that R. J. lived with the K. family for years. [The Appellant] provided 24 hour care to R. J. and looked after all of his needs” (GD2- 72).
13. A letter from Rev. T. I. Rector of the Anglican Parish of Musquodoboit and Ship Harbour, dated October 20, 2014, which stated that the Appellant was a lifelong member of the Anglican Parish in X, and that she and Mr. R. J. “lived together from 1997 until the time of his death” (GD2-73).
14. A statement for the period May 12, 2014, to June 12, 2014, for an account at the Royal Bank of Canada in the names of Mr. R. J. and the Appellant, which showed that cheques were written on the account and cashed; credit card payments were made; and deposits were made from RBC Dominion Investments and Bell Aliant payroll (GD2-92).

[20] On December 30, 2014, the Appellant was interviewed by an Integrity Services Investigator for CPP and OAS. The interview took place at a Service Canada Centre in Dartmouth, Nova Scotia (GD2-24-30) The transcript of that interview indicated that the Appellant gave the following information that is relevant to this appeal:

1. Mr. R. J. became a neighbour in 1960 when he bought property next door to the Appellant and her husband. The Appellant stated “there was no other relationship until my husband passed away”. Two years after that a friendship developed between the Appellant and Mr. R. J. Her older daughter had moved away by then but her two younger children – who were seven months and twenty-two months old when the Appellant’s husband died - “took him as their father and he was very good to them.” She noted that in his will Mr. R. J. left something to her children and grandchildren.
2. She lived at X X X. She was the sole registered owner of the property and she had lived there for 18 years. The Appellant and her husband had owned X X X. Mr. R. J. had owned X and X X X, and he had signed over X to her. The Appellant sold X to a third party in 1996 and built a small house on X. Her daughter has inherited X.
3. She lived with Mr. R. J. from 1997 until his death. They lived in a marriage-like state. They took a holiday together in 1995. They attended church together when he could. He helped around the house to the extent he was able. They ate meals together. Her grandchildren referred to him a “Pops”. Neither was in a relationship with anyone else.
4. Her telephone account was in Mr. R. J.’s name because he had worked for the telephone company and therefore got a discount.
5. She and Mr. R. J. did not jointly sign a lease, mortgage, purchase or rental agreement relating to X X X. He told her that if she needed money he would give it to her. He paid for half of the oil bill “and when I needed money I got it”.
6. She and Mr. R. J. had a joint bank account. She had Power of Attorney which gave her access to his stocks and bonds. He had no other bank account, but she had a separate account “because I had other bills”. They did not have joint credit cards or memberships. They did not have the same medical plan coverage. She had tried to get coverage through the Blue Cross plan he had through his employment, but she was not accepted because the application was made after Mr. R. J. had retired. They did not receive any federal, provincial or municipal benefits based on married status.
7. She did not have life insurance. She did not refer to Mr. R. J. as a spouse in her will because she expected to outlive him and he did not need the money.
8. She indicated on her income tax returns that she was a widow. Mr. R. J. did not want to be named as her spouse on these because he did not want to as “he paid an enormous amount of income tax and he felt it was better that way.” She often thought about informing the Respondent or Canada Revenue Agency of her true marital status, but Mr. R. J. “just felt it would interfere with my income.” She did not realize that she was withholding information.
9. She was not named as Mr. R. J.’s spouse in either of his sisters’ obituaries because they lived common-law and the sisters did not acknowledge the Appellant as Mr. R. J.’s spouse.
10. She was aware that the investigator was not permitted to ask if a couple slept together to determine if they were in a common-law relationship, and she stated that she and Mr. R. J. had separate bedrooms.
11. She had submitted the second CPP survivor’s pension application because “I got so many papers I thought the application was going to another department so I sent it in”.

[21] In response to a suggestion by the investigator that the information and documentation she had provided in support of her application did not prove a common-law relationship, the Appellant replied “Well it was a relationship”.

[22] The investigator referred to the letters from Dr. Bonang; S. Parlee-Shrider; and Reverend T. I. and stated “These letters confirm that Mr. R. J. lived at your residence, but we want to make sure you understand the definition of common-law relationship before we process the application”. The investigator went on to state:

Individuals who meet the definition of common law for Canada Pension and Old Age Security have the same rights and obligations as married individuals when applying for Canada Pension and/or Old Age Security benefits.

In Canada Pension Plan and Old Age Security the term "common law" applies to persons not married to each other who have been cohabitating in a conjugal relationship for a continuous period of at least one year. Conjugal implies a commitment of both common law partners to live in a marriage-like state, thereby assuming those marital rights, duties, and obligations typically applied to married couples.

[23] The investigator asked: “Based on the definition of common law that we have provided, do you consider yourself to be in a common law relationship with R. J.?” to which the Appellant replied “Definitely”.

[24] The transcript indicated the investigator read it back to the Appellant, who stated that she understood its contents and there was nothing she wished to add or change. She stated “No, everything is all true”.

[25] Based on the above evidence, the Respondent decided that the Appellant’s supplement had been calculated incorrectly and informed her of the overpayment. That decision was maintained on reconsideration, and is the subject of this appeal. It is not clear from the file why the overpayment was calculated to begin in July 2000. Presumably that was based on a conclusion that the Appellant’s common-law relationship with Mr. R. J. began in June 1999.

[26] In an affidavit sworn on November 25, 2016 (GD10-2-3), the Appellant stated that it was her understanding when she applied for CPP survivor’s benefits that her relationship with Mr. R. J. qualified as a common-law one because they had lived together for over a year. She stated that this information was given to her by “people” who urged her to apply for CPP benefits, and that at the time she was concerned about her finances.

[27] The Appellant further stated that “[n]ow that I have read the definition of the term common law, and now that I have considered it carefully, I realize that when I was asked “based on the definition of common law that we have provided, do you consider yourself to be in a common law relationship with R. J.?”, my answer should have been “No”.

[28] The Appellant stated that she is 85 years old and it takes her longer to process information, and that she should have been given the option of having a friend or a lawyer with her at the interview “who could have explained to me the definition of common law as it relates to the Canada Pension Plan”.

[29] In an affidavit sworn November 25, 2016 (GD10-04-6), K. W. stated that she is the Appellant’s daughter; that she has lived next door to her for approximately 15 years; and that she has personal knowledge of the relationship between the Appellant and Mr. R. J..

[30] Ms. K. W. stated that her father and Mr. R. J. were close friends until her father’s death in 1967. Their families remained friendly. In 1999 when Mr. R. J. was approximately 84 years old the Appellant agreed to have him move into her home so that she could take care of him. At that time her mother was about 68 years old.

[31] Ms. K. W. stated that throughout the time Mr. R. J. lived with her mother, they had separate bedrooms. She spent most of her time acting as his caregiver and taking him to appointments. Their relationship was not romantic or marriage-like. When she was not caring for Mr. R. J. the Appellant “lived her own life outside of the home and she had her own friends and did her own thing.”

Submissions

[32] The Appellant submitted that she did not live in a common-law relationship as that term is defined in the OAS Act

[33] The Respondent made no submissions to the Tribunal.

Analysis

[34] As set out above, the OAS Act imposes an obligation on the applicant or recipient of a supplement to correctly describe her relationship or marital status, and to report any changes to the Minister. That includes whether or not the person has a common-law partner. A common-law partner is defined as a person who is cohabiting with the individual in a conjugal relationship at the relevant time.

[35] “Cohabiting” and “conjugal relationship” are not defined in the OAS Act or in the CPP, which contains a similar definition of “common-law”. The meaning of those terms has been considered by tribunals and by the courts. In MSD v. Pratt, 2006 CP 22323, the Pension Appeals Board stated at paragraph 44 that: “the core of the [conjugal] relationship is that the parties have by their acts and conduct shown a mutual intention to live together in a marriage-like relationship of some permanence.” The Board listed factors that were indicative of a conjugal relationship, which the Federal Court of Canada approved of in McLaughlin v. Canada (Attorney General), 2012 FC 556:

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

[36] In Hodge v. Canada 2004 SCC 65 the Supreme Court of Canada stated that:

". . . cohabitation is a constituent element of a common law relationship. ‘Cohabitation’ in this context is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof"

Credibility

[37] The onus is on the Appellant to prove that she did not cohabit with Mr. R. J. in a conjugal relationship at any relevant time. For approximately six months after Mr. R. J.’s death, she actively pursued an application for a CPP survivor’s pension that would not be payable to her unless she had in fact been in such a relationship. She must now prove the opposite.

[38] The Tribunal does not accept the Appellant’s statement in her affidavit of November 25, 2016, that she has only recently come to understand the definition of common-law. While there may have been some initial confusion and misunderstanding as to her eligibility for the survivor’s pension, it was soon made clear to the Appellant that her status as a caregiver living under the same roof as Mr. R. J. was not sufficient to establish the necessary common- law relationship.

[39] All of the Appellant’s contact with Service Canada from July 2014 through her interview with the investigator was for the purpose of clarifying the nature of her relationship with Mr. R. J., and there was a very clear distinction drawn between “common-law” – that is, a marriage-like relationship – and any other type. The Appellant was counselled on several occasions as to what sort of proof she would need to establish the former. It was clear that the purpose of the interview in January 2015 was to establish whether the Appellant and Mr. R. J. were living in a marriage-like or common-law relationship, as opposed to one based on friendship or caregiving.

[40] With respect to the Appellant’s statement that she ought to have been allowed to bring a friend or lawyer with her to the interview, the transcript indicates that the investigator asked questions clearly and was understood by the Appellant. She was asked if she and Mr. R. J. were committed to living in a marriage-like state, thereby assuming those marital rights, duties and obligations typically applied to married couples. She stated with certainty that they were. The investigator read the transcript back to the Appellant and gave her the opportunity to add or change any of the information contained in it. She did not. It was only after she discovered discovering the effect her statements would have on her entitlement to the supplement that had been paid to her for the previous 15 years that the Appellant sought to retract the statements she had made.

[41] It is apparent that the Appellant is willing to provide or withhold information based on whether or not she considers it to be to her financial advantage. This has a significant effect on her credibility and on the Tribunal’s ability to place any serious weight on the evidence contained in the Appellant’s affidavit or in any statements made by her. The Tribunal therefore looked to the other evidence to determine whether or not a common-law relationship existed.

[42] The Tribunal accepts the evidence in K. W.’s affidavit. This was the only information provided by the Appellant’s daughter, who lives near her and who was likely in a position to offer a statement in support of her mother’s application for a CPP survivor’s pension. She did not do so, which makes the information contained in her affidavit more plausible.

Evidence of the relationship

[43] The Appellant initially spent several months trying to convince the Respondent that she and Mr. R. J. were common-law partners. It was in her interests to provide as much documentation and as many witness statements as possible. It is therefore likely that all of the evidence that could conceivably have supported the Appellant’s claim to a common-law relationship is before the Tribunal.

[44] The only statements by persons other than the Appellant that suggest the existence of a common-law relationship are those made by Dr. Bonang, Ms. Parlee-Shrider, and Rev. T. I. In particular, there were no statements from the Appellant’s children that corroborated her claim to be Mr. R. J.’s common-law partner, or that they regarded him as a father figure.

[45] The Appellant submitted that the letter from Dr. Bonang should be disregarded because Dr. Bonang could not possibly have known the nature of her relationship with Mr. R. J.. The Tribunal notes that the letter was obviously written at the Appellant’s request to support her CPP application and specifically to prove her common-law status. However, Dr. Bonang did not provide any dates or any information as to how she arrived at her conclusion. The letter is evidence of nothing more than Dr. Bonang’s desire to assist the Appellant.

[46] The letters from Ms. Parlee-Shrider and Rev. T. I. are equivocal. As with Dr. Bonang’s letter, they were no doubt written to help the Appellant with her CPP application. Rather than state that the Appellant and Mr. R. J. were common-law partners, they state only that the two were living together. Ms. Parlee-Shrider and Rev. T. I. apparently were not prepared to attest to the existence of a common-law relationship. That suggests that in their eyes there likely wasn’t one.

[47] The documentation indicates that the Appellant and Mr. R. J. did not present themselves as a married or common-law couple to the outside world, and were not regarded as one. They had one joint bank account, but the Appellant also had Power of Attorney to deal with all of Mr. R. J.’s assets; an arrangement that is more consistent with a caregiver role than that of a spouse. They did not jointly own any other real or personal property. In his will, Mr. R. J. referred to the Appellant as his friend.

[48] Mr. R. J.’s transfer of property to the Appellant in 1995 appears to have been for the purposes of the subdivision and was not a gift. While the Appellant was favoured in Mr. R. J.’s will, her appointment as executrix and the bequests made to her were not unreasonable for someone who had provided significant caregiving to him over many years. Mr. R. J.’s daughter, not the Appellant, was the residual beneficiary.

[49] Mr. R. J. was divorced in 1962, and the Appellant was widowed in 1967. They lived next to each other for three decades before Mr. R. J. moved into the Appellant’s home around 1999. This time included many years when it would have been socially acceptable for an unmarried couple to live together in a common-law relationship if they wished to do so. That they did not move in together until the Appellant was 68 and Mr. R. J. was in his 80s and likely in need of assistance, suggests that their relationship up to that time was not a conjugal one. There is no evidence that it changed. There is no evidence that they ever had a sexual relationship. When it might have been to the Appellant’s advantage to claim that there was one, she did not. Instead, she offered that she and Mr. R. J. had separate bedrooms.

[50] Viewed in its entirety, the evidence points to a close relationship between the Appellant and Mr. R. J. but one that was based on platonic friendship and his need for a caregiver in his later years. It was not one that was “common-law” as contemplated by the OAS Act.

[51] The Tribunal is satisfied on a balance of probabilities that the Appellant was not cohabiting in a conjugal relationship with Mr. R. J. at any time. She therefore did not have a spouse or common-law partner at any time that is relevant to this appeal or to her entitlement to payment of the supplement as a single person.

Conclusion

[52] The appeal is allowed.