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

Decision

I find that the Applicant is not entitled to the Guaranteed Income Supplement (GIS) as of December 2007.

Overview

[1] The Applicant has been receiving a partial pension equal to 28/40. He applied for the GIS, and he was awarded benefits as of December 2007. Following a review, the Respondent determined that the Applicant had not been a resident of Canada since November 2000; he was therefore not entitled to receive GIS benefits from December 2007 to June 2015. The Respondent is claiming $60,468.25 from the Applicant. The Applicant requested a reconsideration of the Respondent’s decision. The Respondent upheld its initial decision on reconsideration. The Applicant appealed the reconsideration decision to the Social Security Tribunal.

Preliminary matter

[2] During the September 2018 hearing, the Applicant and his representative submitted additional documents into evidence, which caused a delay in giving the decision. The documents had to be shared with the Respondent, and time had to be allocated to allow for additional submissions to be made.

Issue

[3] Is the Appellant entitled to GIS benefits as of December 2007?

Analysis

i. Eligibility requirements for the Old Age Security pension – Residence

[4] To receive a partial pension,^{Footnote 1} an applicant must have resided in Canada for at least 10 years, if they resided in Canada on the day before their application was approved. An applicant who resided outside of Canada on the day before their application was approved must prove that they had previously resided in Canada for at least 20 years.

[5] A person resides in Canada if they make their home and ordinarily live in any part of Canada, and a person is present in Canada when they are physically present in any part of Canada.^{Footnote 2}

[6] Case law has set out a non-exhaustive list of factors to be considered when establishing residence. These factors are personal property, social and fiscal ties in Canada, ties in another country, regularity and length of visits to Canada, as well as the frequency and length of absences from Canada, the lifestyle of the person, and their establishment here. The burden of proof rests on the applicant.^{Footnote 3}

ii. Eligibility criteria for Guaranteed Income Supplement benefits

[7] According to section 11(7) of the Old Age Security Act (OAS Act), no supplement may be paid to a pensioner for

(c) any month throughout which the pensioner is absent from Canada having commenced to be absent from Canada either before or after becoming a pensioner and having remained outside Canada before that month for six consecutive months, exclusive of the month in which the pensioner left Canada;

(d) any month throughout which the pensioner is not resident in Canada, having ceased to reside in Canada, either before or after becoming a pensioner, six months before the beginning of that month ….

iii. Documentary and testimonial evidence

[8] The Applicant became a Canadian citizen in 2001.^{Footnote 4} His Immigration Canada file confirms that he entered Canada on September 19, 1972.^{Footnote 5}

a) Passports

[9] The Applicant submitted copies of his Canadian passports valid from 2000 to 2005,^{Footnote 6} 2005 to 2010,^{Footnote 7} 2010 to 2015,^{Footnote 8} and 2016 to 2026.^{Footnote 9}

[10] According to the passport stamps and the Canada Border Services Agency (CBSA) traveller’s history,^{Footnote 10} the Applicant was absent from Canada between 2002 and 2015 from:

• September 11, 2002, to March 19, 2003 (approximately 6 months);
• December 18, 2004, to July 13, 2005 (approximately 7 months);
• December 7, 2005, to October 4, 2006 (approximately 10 months);
• October 7, 2008, to July 1, 2009 (approximately 9 months);
• October 12, 2010, to June 1, 2011 (approximately 8 months);
• September 21, 2011, to July 18, 2012 (approximately 10 months);
• February 5, 2013, to May 29, 2013 (approximately 3 months);
• October 21, 2013, to May 11, 2014 (approximately 7 months); and
• December 24, 2014, to July 16, 2015 (approximately 7 months).

[11] Regarding the years 2007, 2008, and 2009, the CBSA traveller’s history indicates one entry into Canada on September 17, 2008; one entry into Canada on July 1, 2009; and one entry into Canada on June 9, 2010. The evidence submitted at the hearing indicates that the Applicant was out of Canada 338 days in 2007, 290 days in 2008, and 266 days in 2009.^{Footnote 11}

b) Leases and addresses

[12] The evidence on file shows that the Applicant entered into leases from December 1, 2002, to June 30, 2004, for 46A–84e avenue in Montréal;^{Footnote 12} from July 1, 2006, to June 30, 2007, for 40A–84e avenue;^{Footnote 13} from July 1, 2014, to June 30, 2015, for 40A–84e avenue;^{Footnote 14} and from July 1, 2015, to June 30, 2016, for 40A–84e avenue.^{Footnote 15}

[13] According to a letter dated April 17, 2007, from the Applicant’s son,^{Footnote 16} the Applicant has six children, four of whom live in Montréal. The Applicant lives in one of his son’s buildings in a basement that was refurbished for him. Before that time, the Applicant was a homeowner. In 2000, he started staying in Haiti for varying periods of time because of his late wife’s health problems. After her death in 2002, he continued to spend time in Haiti to help his dying mother then his older brother, who had also fallen ill.

[14] At the hearing, the Applicant and his son testified and submitted additional evidence to clarify the Applicant’s housing situation when he is in Canada.

c) Questionnaires

[15] According to a questionnaire dated and signed November 28, 2005,^{Footnote 17} the Applicant indicated that he did not live permanently with his wife in Haiti before her death in November 2002. He states that he considers Canada to be his place of permanent residence and that he makes trips to Haiti because his parents are ill. He says that he was out of Canada from September 11, 2002, to March 14, 2003, when his wife died.

[16] In another questionnaire dated and signed September 18, 2015,^{Footnote 18} the Applicant indicated that he left Canada for Haiti in October 2014 and was away until July 2015, that he considers Canada his country of residence, that he has had housing since 2002, and that, when he goes to Haiti, he stays with his brother and sister.

d) Bank statements

[17] The Applicant’s bank statements for the period from January 1, 2007, to October 28, 2015,^{Footnote 19} indicate a few bank transactions each month around the same days.

e) Medical examinations

[18] The Applicant also held a Régie de l’assurance-maladie du Québec (RAMQ) health insurance card,^{Footnote 20} which shows very few medical examinations between 2002 and 2015: two examinations in 2003, one examination in 2005, four examinations in 2007, and one examination in 2008.^{Footnote 21}

f) Tax returns

[19] The Applicant filed tax returns for 2007 to 2014 but after the statutory deadline, except for 2012.^{Footnote 22}

g) Investigation reports and interviews

[20] According to an interview report dated October 8, 2015,^{Footnote 23} when the Applicant goes to Haiti, he stays at the family home in Port-au-Prince. The house belonged to his parents, but it now belongs to him, his sister, and his brother. When he is in Canada, he spends time with his children and grandchildren. He says that he tried renewing his health insurance card, but the RAMQ denied his request because he was in Haiti too often. He attributed the few medical examinations in Canada to the fact that his brother and sister living in Haiti are a doctor and a nurse respectively. He goes to see them when he is sick.

[21] According to an investigation report dated April 23, 2007,^{Footnote 24} the Applicant had a driver’s licence from 1972 to 2004 but lost it in 2004 because of unpaid fines. When he stays in Haiti, he lives with his sister-in-law.

Conclusion

[22] Based on the evidence, I find that the Applicant severed his residence ties and that he is not entitled to the GIS as of December 2007. Even though the Applicant has a place to live and has children and grandchildren in Canada, unfortunately there is not enough evidence of residence as of December 2007. I have considered the fact that the Applicant has submitted four leases signed in Canada between 2002 and 2016 and that his son explained during the hearing that the Applicant lives in a basement suite in one of his buildings in Montréal. In addition, the Applicant has filed his Canadian tax returns, but after the deadline, and very few bank transactions were made between January 2007 and October 2015. However, I cannot ignore the evidence about the regularity and length of the Applicant’s absences from Canada each year between 2002 and 2015. He is absent for six to ten months.

[23] It is clear that, although the Applicant has ties to Canada, he also has strong ties to his country of origin—Haiti—as a place of residence, he is treated by his brother and sister who are a doctor and a nurse respectively, and he spends most of his time in Haiti.

[24] Based on this evidence, I cannot find that the Applicant is a resident of Canada. I must apply the rules of the OAS Act and its regulations and the rules of case law to determine residence and GIS eligibility. As the Old Age Security Regulations specify, a person resides in Canada if they make their home and ordinarily live in any part of Canada. Furthermore, case law has set out a non-exhaustive list of factors to be considered when establishing residence; this includes personal property, social and fiscal ties in Canada, ties in another country, regularity and length of visits to Canada, as well as the frequency and length of absences from Canada, the lifestyle of the person, and their establishment here.

[25] The evidence indicates that the Applicant’s ties to Canada since 2007 are limited, and his very regular long absences from Canada also show that he has severed his ties to Canada.