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Decision and Reasons
Decision
[1] The Applicant and the Added Party were not residents of Canada under the Old Age Security Act (OAS Act) between May 2001 and October 2013.
Overview
[2] The Applicant and the Added Party each applied for an Old Age Security (OAS) pension.Footnote 1 However, the Respondent refused their applications because they did not meet the minimum residence requirement of 10 years to be entitled to an OAS pension.
[3] The Applicant and the Added Party initially appeared before the General Division of the Social Security Tribunal (Tribunal) under files GP-15-138 and GP-15-139, respectively. The Tribunal’s General Division made a decision on January 11, 2018, and it was appealed to the Tribunal’s Appeal Division under file AD-18-232.
[4] A consent agreement was reached between the parties and, in accordance with section 59(1) of the Department of Employment and Social Development Act, the matters were referred back to the General Division with directions to hold a de novo hearing to determine the merits of the Applicant and the Added Party’s residence in Canada between May 2001 and October 2013 under the OAS Act.
Preliminary matter
[5] The Applicant and the Added Party each filed a notice of appeal with the Tribunal; the notices bear the numbers GP-15-138 and GP-15-139, respectively. After the Appeal Division referred the matters back to the General Division, two new files were created, numbered GP‑18‑1724 and GP-18-1726, respectively.
[6] Since both appeals deal with the same questions of law and fact regarding eligibility for an OAS pension and residence in Canada, the Tribunal will make a single decision for both files, in accordance with sections 10 and 13 of the Social Security Tribunal Regulations.
Issues
[7] Were the Applicant and the Added Party residents of Canada under the OAS Act between May 2001 and October 2013?
[8] If so, were the Applicant and the Added Party entitled to an OAS pension when they applied for OAS, that is, on October 9, 2013?
Analysis
Eligibility criteria for an OAS pension
[9] The Applicant passed away on July 26, 2015.Footnote 2 The Applicant’s estate was represented by the Applicant’s son, duly authorized by a power of attorney naming him as the estate executor.Footnote 3 In this decision, the Applicant’s son and the Applicant are referred to as “the Applicant.”
[10] For OAS purposes, a person resides in Canada if they make their home and ordinarily live in any part of Canada. This is distinct from the concept of presence. A person is present in Canada when they are physically present in any part of Canada.Footnote 4 A person can be present in Canada without being a resident of Canada.
[11] Residence is a question of fact to be determined on the particular facts of each case. A person’s intentions are not decisive. The decision DingFootnote 5 sets out a non-exhaustive list of factors to consider to guide the Tribunal in deciding the issue of residence:
- ties in the form of personal property
- social ties in Canada
- other ties in Canada (medical coverage, driver’s licence, rental lease, tax records, etc.)
- ties in another country
- regularity and length of stays in Canada compared with the frequency and length of absences from Canada
- the person’s mode of living, or whether the person’s life in Canada is substantially deep-rootedFootnote 6
[12] I find that the Applicant and the Added Party did not make their home and ordinarily live in Canada between May 2001 and October 2013, despite being intermittently and regularly in Canada during that period.
[13] The Applicant and the Added Party confirmed the dates they entered and left Canada after May 2001, as compiled in the table the Respondent preparedFootnote 7 and in a statement of absences from Canada.Footnote 8 The Applicant and the Added Party confirmed that they had always travelled between Canada and Morocco together, meaning on the same dates.
[14] I will now consider the Applicant and the Added Party’s documents and testimony against the Ding factors to decide whether the Applicant made his home and ordinarily lived in Canada.
1. Ties in the form of personal property
[15] The Tribunal finds that this factor does not support that the Applicant made his home and ordinarily lived in Canada when it comes to establishing his Canadian residence.
[16] The Applicant and the Added Party came to Canada only with their clothes and small personal items. Family furniture was left in Morocco for their three daughters, who still live there and who kept the family apartment. When they came to Canada, the Applicant and the Added Party always lived in their son’s apartments, and they moved with him when he bought a house in 2004.
[17] They always had their own room, which had furniture their son had bought for them. They were the only ones who used the room, and they could leave their clothes and personal items in it permanently, even when they were in Morocco. The situation was the same for the apartment in Morocco, where the parents had a room for their exclusive use. The son explained that this is a moral and customary obligation of respect for parents.
[18] Therefore, the Applicant and the Added Party came with their clothes and a few personal items. All their furniture was provided by their son, who accommodated them after their arrival in Canada. The parents simply updated their wardrobe, everything being provided for by their son in Canada for their Canadian needs.
[19] The Tribunal recognizes that the son acted responsibly by providing his parents with everything they needed and that he was able to meet their needs when they were in Canada. However, it cannot give much weight to this factor to find that the Applicant made his home and ordinarily lived in Canada, since the Applicant and the Added Party had relatively few ties in the form of personal property in Canada during that period.
2. Social ties in Canada and in Morocco
[20] The Tribunal does not find this factor supportive of residence in Canada.
[21] When they came to Canada in May 2001, the Applicant was 63 years old, and the Added Party, 56 years old. The Applicant had retired in 1998 as chief of staff at the police headquarters. Their immigration to Canada was never planned. The Applicant told his son that he had fallen in love with Canada during a visit and that he wanted to come live in Canada, so the son started the immigration process for his family, but only his parents were accepted.
[22] The Applicant and the Added Party’s son came to Canada in 1998 and became a Canadian citizen in 2003. Up until his departure for Canada from Morocco, the son had always lived with his parents, and they were responsible for supporting him and his three sisters. The Applicant’s son explained that, according to Moroccan custom, parents are responsible for looking after and supporting their children. When the parents get older, this responsibility shifts, and it is up to the children—mainly the sons—to look after their parents and to support them and, by extension, the rest of the family.
[23] Given that the daughters were not accepted, the parents had to continue going back and forth between Morocco and Canada. However, this shows the very strong connection the parents had to their three daughters, who had stayed in Morocco, and to the country itself. As mentioned at paragraph 100, their stays in Morocco grew increasingly longer compared with those in Canada until they applied for OAS.
[24] The Applicant and the Added Party did not have any family in Canada besides their son. The entire family was in Morocco, mainly their three daughters. The son worked all day, 10 to 12 hours a day, and the parents were left to themselves.
[25] The Added Party was part of a local Muslim association that organizes community activities and supports members of the community who are in need. Her involvement was limited to celebrations or special activities and was not regular.
[26] The Applicant and the Added Party did not have many friends in Canada. Their acquaintances were mainly their son’s friends in Canada. They mainly saw them during Muslim celebrations, either at their son’s home or at his friends’ places. When he testified, the Applicant indicated that most of the Muslim community is in Montréal, and they live in the suburbs, a far distance for the Applicant and the Added Party to travel. The son could not drive them during the week, since he was at work. The Applicant and the Added Party’s life was mainly sedentary at home, going for walks, and running errands. The son gave them money, and they went to buy groceries.
[27] The Applicant and the Added Party had a similar lifestyle in Morocco, where they spent time with their daughters and ran errands.
[28] It is clear that the Applicant and the Added Party maintained ties to both Canada and Morocco. These ties to Canada grew stronger after their son settled here. However, the Applicant and the Added Party testified doing very few activities and having very few acquaintances in Canada. The Applicant and the Added Party still had three daughters in Morocco, the entire extended family, friends, and former colleagues. The Tribunal can only conclude that the Applicant and the Added Party had stronger social ties in Morocco than in Canada.
3. Other ties in Canada and in Morocco
[29] The Tribunal finds that this factor does not conclusively point to residence in Canada for the Applicant and the Added Party.
[30] The Applicant had a cell phone in Canada for which the son paid the bills.Footnote 9 The contract started soon after the Applicant’s arrival and included a very limited plan for emergency calls. The Added Party did not have a cell phone. The Applicant and the Added Party also used phone cards.
[31] The Applicant and the Added Party testified that they had started filing their tax returns in 2002 and that they had filed each year after that. No documentary evidence was presented in this regard, but the Tribunal is satisfied with the testimony.
[32] The Applicant and the Added Party did not have driver’s licences in Canada. However, they had driver’s licences in Morocco. They explained that Moroccan driver’s licences do not have expiry dates and are valid from the date of issue until the holder’s death. Because of health problems, the Applicant stopped driving in 1996. The Added Party got her Moroccan driver’s licence in 1972, and she stopped driving years before she came to Canada. It was up to the children to drive the parents where they wanted to go. The Applicant still chose to keep his Moroccan driver’s licence, even though he did not use it because the family had decided he would no longer drive, which shows a stronger connection to Morocco.
[33] In Morocco, the Applicant and the Added Party enjoyed the health coverage available to all Moroccan citizens, as well as the additional coverage available to government employees and retirees for services not covered by the public plan. According to the Applicant and the Added Party, they had medical coverage with a mutuelle [top-up health insurance] because the Applicant was a government retiree and this was a vested right for him and his spouse. As a result, he did not have to purchase specific travel insurance, even though some services were not covered.
[34] In Canada, the Applicant and the Added Party were insured under the public plan of the Régie de l’assurance maladie du Québec [Quebec health insurance board]. However, they did not have any additional private coverage for goods and services not covered by the provincial plan. The Applicant and the Added Party mentioned having their family doctor in Canada since 2010 [and] their medical records at the local hospital and at the pharmacy.
[35] The Tribunal can only conclude that the Applicant and the Added Party had stronger ties and broader medical services coverage in Morocco than in Canada.
[36] The Applicant and the Added Party did not have wills in Canada. They explained that the Applicant did not leave a will because he was Moroccan and estates without a will are possible in Morocco.Footnote 10 On appeal, the Applicant clarified that Moroccan custom stems from Sharia law, which the Moroccan civil code is based on and which provides for the division of assets upon death. In addition, the Applicant indicated that they had no assets. Even though they had no assets in Canada, a will makes the post-death process easier for the estate. The Tribunal can only conclude that the Applicant and the Added Party made the choice to follow the post‑death process in accordance with Moroccan laws, which shows a stronger connection to Morocco than to Canada.
[37] Even though the Applicant said that he loved Canada more than Morocco and, according to Muslim tradition, a deceased Muslim has to be buried within 24 hours, the Applicant’s family decided to bury him in Morocco. This decision was made so that the three sisters could visit their father’s grave every Friday. In addition, the family believes that people should be buried in their home country. The Applicant also indicated that he found Muslim cemeteries in Canada to be poorly managed.
[38] The Applicant was eligible for a pension as a public service retiree that was equal to 80% of his salary. This pension was deposited directly into his bank account in Morocco. When they testified, the Applicant and the Added Party stated that the money received from this pension was used exclusively for the upkeep of the apartment in Morocco and for the subsistence of the couple’s three daughters, who are still in Morocco. After the Applicant passed away, the Added Party continued to receive this pension at the rate of 50% of the pension paid to the Applicant. This pension is now deposited into a new account the Added Party opened in Morocco. The Applicant’s son makes up the difference in the pension, again to help his sisters, since this is a moral and customary obligation of the family, as the Applicant explained in his testimony.
[39] The Applicant had a bank account in Morocco that he always kept and into which his pension was deposited. The Added Party did not have a bank account in Morocco until she had to open one after her spouse passed away. The Applicant made postdated cheques payable to one of his daughters to pay the rent and manage apartment expenses. The Applicant and the Added Party mentioned each having a bank account in Canada.Footnote 11
[40] The Applicant and the Added Party indicated that, since obtaining Canadian citizenship, they had had only Canadian passports and no longer had Moroccan passports. They kept only their national identity cards. However, when he testified, the Applicant clarified that you can enter or leave Morocco with only a Moroccan national identity card, without using a national passport, as long as you have any kind of passport.
[41] The Applicant had a car in Morocco until he left for Canada. Two of the three daughters have a driver’s licence, but only one of them drives regularly. The Applicant’s car was sold when the Applicant and the Added Party left for Canada, and their son bought a more recent car. The car was registered to one of the daughters of the Applicant and the Added Party so that she could run necessary errands and drive the parents when they were in Morocco. The Applicant’s son is the one who pays for the vehicle’s insurance and registration, which are in the name of one of the Applicant’s daughters, as the Applicant mentioned in his testimony. The Applicant and the Added Party did not have any vehicles in Canada. In both countries, the children were the ones responsible for transporting the parents as needed.
[42] The Applicant and the Added Party travelled only between Canada and Morocco, except for one short, four-day trip they made to the United States around 2008 to go to New York, Boston, and Philadelphia.
[43] The family apartment in Morocco has been rented since 1974. It has been used as a family home since then. After the parents immigrated to Canada, they kept the apartment in Morocco for their three daughters. The rent was paid from the Applicant’s retirement pension, which was deposited directly into his bank account in Morocco. The Applicant’s daughter was the one in charge of making the payments thanks to postdated cheques made out to her by the Applicant. In that apartment, the Applicant and the Added Party had a furnished room where they could leave their personal items. When he testified, the Applicant explained that the children respected the privacy and personal nature of the parents’ room and could not use it even if the parents were away for a long period.
[44] In a questionnaire International Operations received on May 30, 2012,Footnote 12 the Applicant answered that he had not abandoned his residence in Morocco.
[45] Once again, the Applicant and the Added Party have shown that they maintained ties to both Canada and Morocco. However, it is clear to the Tribunal that ties were stronger in Morocco than in Canada. The bank accounts and the transactions made in them in Morocco, the legal ties for the will, the medical coverage, and the medical services that were or could be used based on the coverage show this attachment to the Tribunal.
[46] The Tribunal finds that the Applicant and the Added Party maintained very strong ties in their home country, even stronger than those established in Canada, and [sic] do not permit the Tribunal to conclude that the Applicant and the Added Party made their home and ordinarily lived in Canada, given that, among other things, they kept an apartment there and a bank account into which a government retirement pension was paid.
4. Regularity and length of stays in Canada
[47] The Tribunal finds this factor supportive of Canadian residence.
[48] The Applicant and the Added Party mentioned spending more time in Canada with their son than with their three daughters, who stayed in Morocco, because he is their only son and the youngest in the family. However, they were also very attentive to the needs of their daughters. For example, they went back to Morocco for almost a year when one of them separated from and then divorced her spouse a few months after their wedding.
[49] The Applicant provided a statement of the dates he entered and left Canada.Footnote 13 Based on this statement, the Respondent calculated the number of days the Applicant and the Added Party had spent in Canada and in Morocco.Footnote 14 The results are as follows:
2001 – Canada 7 months and 6 days, Morocco 6 days
2002 – Canada 8 months and 27 days, Morocco 3 months and 4 days
2003 – Canada 9 months and 11 days, Morocco 2 months and 19 days
2004 – Canada 7 months and 30 days, Morocco 4 months
2005 – Canada 7 months and 29 days, Morocco 4 months and 2 days
2006 – Canada 7 months and 11 days, Morocco 4 months and 20 days
2007 – Canada 11 months and 14 days, Morocco 17 days
2008 – Canada 7 months and 2 days, Morocco 4 months and 29 days
2009 – Canada 1 month and 19 days, Morocco 10 months and 12 days
2010 – Canada 5 months and 20 days, Morocco 7 months and 10 days
2011 – Canada 7 months and 26 days, Morocco 4 months and 5 days
[50] The Applicant and the Added Party’s comings and goings show regular stays in Canada. However, the length of stays in Canada and in Morocco varied depending on the year. Stays in Canada, which were longer when they arrived, tended to shorten over time; on the other hand, stays in Morocco tended to lengthen, going from approximately one month in 2001 to up to 10 months between 2009 and 2010.
[51] However, the Tribunal recognizes that the regularity and length of stays in Canada are supportive of Canadian residence.
5. The Applicant’s mode of living
[52] When he testified, the Applicant explained that the ties between the parents and their children stemmed from a moral and cultural obligation to support the family. However, the Applicant and the Added Party’s mode of living shows that they lived both with their son and with their three daughters, who had stayed in Morocco. Their everyday activities were the same in both places and were very limited.
[53] The Applicant and the Added Party made use of a family apartment that had stayed in the family, transferred as a result of the same moral obligation. Because of this same moral obligation, after the Applicant’s death, the son now makes up the difference in the pension that was paid to his father. The family bond is very strong because of Moroccan, Arab, and Muslim tradition. But this bond was very strong between the parents and their son as well as between the parents and their three daughters.
[54] According to the Applicant’s son, the Applicant said that he was very proud to have become a Canadian and that he fell in love with the country from his very first visit to Canada in 1999. However, this is not a criterion for determining whether a person makes their home and ordinarily lives in Canada.
[55] After the Applicant passed away on July 26, 2015, the son asked the Added Party whether she wanted to go back to Morocco to live with his sisters so that they, along with the extended family, could give her the support she needed in those difficult times. The Added Party indicated that she did not want to go back and that, to her, her life was now in Canada. However, I have to make my decision based on whether the Applicant and the Added Party met the eligibility requirements for OAS when they applied for OAS, that is, on October 9, 2013.
[56] The Applicant and the Added Party’s life in Canada was simple, similar to the one they led in Morocco. When they were in Canada, they lived with their son, who looked after them. When they were in Morocco, they lived with their three daughters, who looked after them. When they were in Canada, all they did was spend time at home, go for walks, and go shopping. They did the same thing when they were in Morocco. Their son drove them when they wanted to get around and he was not working. It was the same in Morocco, with one of the daughters driving them when they had to get around.
[57] Once again, the Applicant and the Added Party had some ties in Canada, but they were no different from those they had in Morocco. The Tribunal finds that the Applicant and the Added Party’s mode of living does not support that the Applicant made his home and ordinarily lived in Canada, but rather that the Applicant and the Added Party’s attachment to Canada was simply family-related, given that their son was now living in Canada.
Conclusion
[58] The Tribunal is sensitive to the Applicant and the Added Party’s arguments about loving and now feeling at home in Canada. However, the Tribunal has to consider all the factors to conclude that the Applicant and the Added Party made their home and ordinarily lived in Canada.
[59] The Tribunal understands the parents’ attachment to all of their children, namely their son, who now lives in Canada, and their three daughters, who are still in Morocco, but the fact that they had their own room in Canada when they visited their son, who covered all their expenses, even though they were now Canadian citizens, does not make them people who made their home and ordinarily lived in Canada.
[60] Consequently, based on its analysis, the Tribunal finds that five of the six Ding factors (listed at paragraph 63 [sic] of this decision) do not support the conclusion that the Applicant and the Added Party made their home and ordinarily lived in Canada. Only one factor supports the conclusion that the Applicant and the Added Party ordinarily lived in Canada. However, while this factor is the regularity and length of stays in Canada (factor 4 in my analysis), the Tribunal does not give it much weight, since this factor shows only that they were present in Canada rather than rooted in Canadian social and economic life. It is particularly this fact of being rooted in Canadian social and economic life that establishes that people make their home and ordinarily live in Canada.
[61] The Tribunal must make its decision based on the evidence received and the testimony heard on appeal. Consequently, the Tribunal finds that the Respondent, on a balance of probabilities, properly assessed the Applicant and the Added Party’s file and that they were not residents of Canada under the OAS Act between May 2001 and October 2013, but rather only present in Canada.
[62] In light of the Tribunal’s finding, the Applicant and the Added Party were not entitled to an OAS pension when they applied for OAS, that is, on October 9, 2013.
[63] The appeal is dismissed.