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

Decision and reasons

Decision

[1] The Claimant, A. V., appealed the Minister’s decision to calculate her Guaranteed Income Supplement at the rate for a person with a pensioner spouse. I am dismissing her appeal. These are my reasons.

Overview

[2] The Guaranteed Income Supplement (GIS) is an income-based benefit paid under the Old Age Security Act (OAS Act). In calculating the amount to be paid, the Minister takes into account a person’s income as well as the income of their spouse. However, if the person has been separated from the spouse for a continuous period of at least three months, the GIS is calculated as if the person was single.^{Footnote 1}

[3] The Claimant and E. V. were married in Greece in 1959.^{Footnote 2} They moved to Canada a few years after that. The Claimant turned 65 in March 2001, and began receiving an OASpension and GIS the following month.^{Footnote 3} Because the Claimant said in her GIS application that she was separated, her husband’s income was not taken into account in deciding how much GIS she should receive. This meant that each month the Claimant was paid more than she would have been if she were not separated.

[4] In April 2016, the Minister decided the Claimant and her husband had always lived together in a marital relationship, and that as a result the Claimant’s GIS should have been calculated at the rate for a person with a pensioner spouse. The Minister determined the Claimant had been overpaid from April 2001 to September 2014.^{Footnote 4} The Minister maintained this decision on reconsideration,^{Footnote 5} and the Claimant appealed to the Social Security Tribunal.

[5] The Minister made a similar decision about E. V.’ GIS. E. M. also appealed to the Tribunal.^{Footnote 6} I decided to hear the appeals at the same time, because the issues and the evidence were the same.

[6] V. V. is the daughter of the Claimant and E. V.. She is also their representative for their appeals. She and the Claimant called into the teleconference hearing. She told me her father was in a care facility and could not take part, but he wanted his appeal to go ahead in his absence. I therefore decided to continue with both hearings.

[7] Because V. V. was acting as a volunteer for administrative purposes and support rather than as a true legal representative, I did not see any conflict in her being a witness as well. I heard testimony from her and from the Claimant. In reaching my decisions, I considered this testimony along with the evidence in both files. Unless otherwise stated, page references in this decision are to documents in the Claimant’s Tribunal file.

Issue

[8] I must decide if the Claimant and her husband were separated for a continuous period of at least three months at any time since the Claimant began receiving GIS in April 2001. It is the Claimant’s responsibility to prove this.

Analysis

The meaning of “separated”

[9] The OAS Act says a person’s GIS is to be calculated as if they did not have a spouse (that is, as if they were single) if they have been separated from their spouse “for a continuous period of at least three months”, not including the month in which they separated.^{Footnote 7}

[10] The Minister submitted that separation occurs when a couple lives separate and apart by mutual agreement, under a legal separation, or where one has deserted the other according to the law of the province where they last resided together.^{Footnote 8} This meaning is not wrong, but it does not appear in the OAS Act or the OAS Regulations. Because the OAS legislation does not say what “separated” means, I must look at the ordinary meaning of the word and consider how it fits in with the purpose of the OASand the intention of Parliament.^{Footnote 9}

[11] “Separated” generally describes people or things that are apart. However, when we refer to married people being separated, we usually mean more than that. We mean they are apart because at least one of them has decided not to live with the other in a marriage-like relationship and has said or done things that show this.

[12] I think Parliament intended the OAS Act to mean this as well. I reached this conclusion by looking at a similar rule for common-law partners.^{Footnote 10} Like married spouses, their GIS is calculated using both their incomes until they have stopped being common-law partners for at least three months. I do not think Parliament intended that common-law couples should be treated any differently than married couples, so I think the factors that lead us to think two people are no longer common-law partners are the same ones that tell us if a married couple is separated.

[13] The OAS Act says a common-law partner is “a person who is cohabiting with the individual in a conjugal relationship”.^{Footnote 11} Several court decisions explain what that means. Although these decisions were about the Canada Pension Plan (CPP), they are relevant because the definition of “common law partner” is the same in the CPP as it is in the OAS Act.

[14] The decisions tell us that two people can cohabit even if they do not live under the same roof.^{Footnote 12} It is also possible to be separated yet still live in the same household.^{Footnote 13} In deciding whether a couple is cohabiting in a conjugal relationship, we must consider things like their living and financial arrangements, their behaviour towards each other privately and in public, what help and support they give each other, and how their relationship is viewed by family members and the community.^{Footnote 14} I think those factors are also relevant in deciding whether a married couple has separated.

The Claimant and her husband have not separated

[15] The evidence about when or why the Claimant and her husband were apart is vague and not always consistent. I do not think they intended to deceive anyone about whether or not they were separated. They do not understand English very well, and they relied on others to fill out forms for them. As I have said, the meaning of “separated” is not clear. However, even with the most generous interpretation of the evidence about their living arrangements and the state of their relationship, I cannot find they were separated at any time as far as the OAS Act is concerned.

[16] The Claimant told me she has always felt separated from her husband. He gave her a very hard life, but she kept taking him back to give him another chance. She said that for many years they have not had sexual relations, have had separate bedrooms and separate bank accounts, and have not shared expenses. She did not remember when these separate arrangements started, but she said it was long before 1998.

[17] V. V. was born in 1971. She told me that her father was difficult and verbally abusive, and her mother was very anxious. For her entire life, her parents were sometimes together and sometimes apart. The family lived in various rental homes in Edmonton, but her father would move around within the city and to other places for work. Once the children grew up and moved away, her mother lived in a number of rental apartments in Edmonton. Sometimes V. V. lived with her to help support her. From 1993 to 2001, V. V. lived with her boyfriend. Her mother did not live with her during this period, but her father did for a few years. She did not know where he was at other times.

[18] In 1998, the Claimant and her husband moved into their son’s home in X, Alberta. Their son’s wife, S. V., said they lived as a couple in her home, and as far as she knew they did not consider themselves separated.^{Footnote 15}

[19] V. V. has a different recollection of her parents’ relationship at that time. She viewed them as being together but not as a couple. They were together because they needed each other for support. V. V. said this arrangement was mostly successful, but sometimes they would fight, after which her mother would leave and visit her in Edmonton. She told me her parents continued to have separate bank accounts and each paid their own rent to her brother. Neither of them has any assets, so there was nothing to share.

[20] In May 2008, the Claimant and her husband moved out of their son’s home. V. V. told me that since then they have lived together in a number of different seniors’ self-contained apartments in X and Edmonton. At some point, her father tried to live with V. V. and her common-law husband in Edmonton, but this did not work out. It is unclear when this was, or how long he stayed. It appears the Claimant and her husband separated from July 20 to October 1, 2011.^{Footnote 16} However, no one can explain what happened during this period. In any event, it was not long enough to trigger a change in their GIS calculation.

[21] V. V. told me that all her parents’ apartments, including the one they moved to in February of this year, have had one bedroom with two single beds. Her mother cooks meals, and her father eats them when he feels like it. She said her parents have this arrangement for financial reasons, and because they can watch out for each other. She does not know if their community views them as a couple, but she said that everyone who knows them is aware of their situation. She thinks her parents probably did not divorce because it is not done in their culture, and because her mother wanted her marriage to work.

[22] This is a difficult case to decide, because many of the things we usually associate with a marital relationship are absent. What binds this couple is their marriage license, their culture, and their need to have a roommate for financial reasons and household support. However, I cannot ignore the fact that despite many years of difficulties and lack of intimacy, they keep coming back to each other. Since 1998, they have chosen to live together except for a brief period apart. For that reason, I cannot find they were separated at any time since they moved into their son’s home in 1998. That means that the Claimant’s GIS ought to have been calculated by including her husband’s income since she began receiving it in April 2001.

[23] I recognize this conclusion may cause hardship for the Claimant. However, I do not have authority to disregard the OAS Act for compassionate reasons or extenuating circumstances.

Conclusion

[24] The appeal is dismissed.