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

Decision

[1] As of April 10, 2019, the Claimant has 6 years and 313 days of Canadian residency. This is not enough to qualify for an Old Age Security (“OAS”) pension. However, no periods of residency after April 10, 2019, have been assessed.

Overview

[2] The Claimant was born in China in 1934. He first entered Canada on September 20, 1999. He always travelled with his wife, D. Y. (“D”). Their daughter Y. C. (“Y. C.”) was studying in Canada, and is still in Canada now. Y. C. is married to X. Y. (“X”). X. Y. acted as a representative in these proceedings. Since 1999, the Claimant and D. Y. have spent extended periods in both Canada and China. They are Chinese citizens, but obtained Permanent Resident status in Canada on December 19, 2003.^{Footnote 1}

[3] The Minister received the Claimant’s application for the OAS pension on July 27, 2018. The Minister denied the application initially and on reconsideration. In the reconsideration decision, the Minister said the Claimant had 6 years and 313 days of residence in Canada. The Claimant appealed that decision to the Social Security Tribunal.

[4] To qualify for an OAS pension, the Claimant must meet the requirements set out in the Old Age Security Act. For a full OAS pension, he would normally need forty years of Canadian residency, although this rule has some exceptions that do not apply to the Claimant.^{Footnote 2} For a partial OAS pension, he must have at least ten years of Canadian residency. However, if he has less than twenty years of Canadian residency, he must also reside in Canada to be eligible.^{Footnote 3}

Preliminary matters

[5] At the start of the hearing, I confirmed I would be considering the Claimant’s residence up to April 10, 2019 (the reconsideration decision date). This was first discussed at the pre-hearing conference on July 28, 2020. I also heard the Claimant’s appeal together with D. Y.’s appeal, as the circumstances are more or less identical. I issued a separate decision for D. Y..

[6] Although X. Y. is shown as the Claimant’s representative, he is not a legal professional. He was helping the Claimant and D. Y. because he is their son-in-law and speaks English well. Neither the Claimant nor D. Y. speak English, and they are also currently in China. I therefore considered X. Y. to be only an “administrative” representative, so that he could give evidence as well.

Issues

[7] During which periods was the Claimant resident in Canada?

[8] Is the Claimant entitled to an OAS pension?

Analysis

[9] Since 1999, with a few brief exceptions, the Claimant has spent all his time in either Canada or China.

[10] The following chart (the “Presence Chart”) shows where the Claimant has been present since his initial entry to Canada on September 10, 1999.

[11] The Presence Chart mostly comes from the Claimant’s passport stamps.^{Footnote 4} Arrivals and departures in China appear in his passport. While his arrivals in Canada also appear, his departures from Canada do not. This means the above chart may slightly overstate his presence in Canada: an arrival in China usually means he left Canada the previous day. However, I usually gave him the benefit of the doubt: I assumed he left Canada that same day that he arrived in China. The exception is his October 2014 flight from Canada to China: his ticket confirms that he left Canada on October 26 and arrived in China on October 27.^{Footnote 5}

During which periods was the Claimant resident in Canada?

[12] For the reasons set out below, I find that the Claimant was resident in Canada for the same periods set out in the reconsideration decision. There periods are August 30, 2002, to January 5, 2006; April 29, 2013, to November 9, 2015; and April 22, 2018, to April 10, 2019. This totals 6 years and 313 days. I will now explain how I came to this conclusion.

[13] A person resides in Canada if he makes his home and ordinarily lives in any part of Canada. A person is present in Canada if he is physically present in any part of Canada.^{Footnote 6} Being present in Canada does not mean that a person is resident in Canada. While presence is important in determining residence, it is not the only factor. Residence is a factual issue that requires looking at the “big picture” of the person under scrutiny.^{Footnote 7} The Federal Court of Canada says I should consider the following factors (known as the “Ding Factors”):^{Footnote 8}

1. ties in the form of personal property;
2. social ties in Canada;
3. other ties in Canada (medical coverage, driver’s license, rental lease, tax records, etc.);
4. ties in another country;
5. regularity and length of stay in Canada, and the frequency and length of absences from Canada; and
6. the person’s mode of living, or whether the person living in Canada is sufficiently deep-rooted and settled.

[14] In the reconsideration decision, the Minister admitted the periods in bold italics (in the Presence Chart) as Canadian residence. The Minister maintained that position in its written submissions, and did not attend the hearing. It would be unfair to make the Claimant prove those periods of residency. I therefore accept that he resided in Canada during those periods.

[15] This means that the Claimant had at least 6 years and 313 days of Canadian residency. He made two main arguments at the hearing. First, he submitted he was a Canadian resident for the period from September 20, 1999, to August 30, 2002. Second, he submitted that he was a Canadian resident for the period from April 30, 2011, to at least November 1, 2012.

(1) The period from September 20, 1999, to August 30, 2002

[16] The Claimant lived in China for nearly 65 years until September 1999. He was then present in Canada for 440 days, but was then back in China for the next 636 days (until August 30, 2002). While 440 days is a significant period, he stayed much longer in China both before and afterwards. However, I still need to look at the “big picture”. The Ding Factors may otherwise favour Canadian residence.

[17] Alas, the Claimant and his wife had few strong connections to Canada during this time. They were Chinese citizens and had not yet applied for permanent residence status in Canada. They were in Canada to be with Y. C. and help her in her daily life, as she was single at the time and had just started an M.B.A. program at the University of Ottawa. They stayed in an apartment that Y. C. rented.^{Footnote 9} This shows loyalty and dedication to their daughter.

[18] However, during that time, both the Claimant and his wife still had many relatives in China. They have repeatedly mentioned how important it was to visit and take care of them. The Claimant’s brothers both lived in China, until they died in 2011 and 2014 respectively. D. Y.’s two older sisters are still alive in Shanghai now, although her younger sister died about ten years ago in Australia.^{Footnote 10} I cannot “weigh” which family members are most important, but the family members in China clearly meant a lot to the Claimant and D. Y..  

[19] The Claimant owned no property in Canada up to August 30, 2002. He and his wife rented a furnished apartment in Shanghai then, and still rent it now. In Canada, they lived with Y. C. and did not have a place of their own. When Y. C. finished school, the Claimant and his wife returned to China because Y. C. could not support them until she had stable full-time work.^{Footnote 11} While they may have wished to stay in Canada longer, intent is not determinative.^{Footnote 12} Y. C. said her unstable financial status explained her delayed sponsorship of her parents. However, this shows that the family’s connections to Canada were not yet “deep-rooted”.^{Footnote 13} I note that nobody else lives in the Claimant’s Shanghai apartment, which further shows a strong connection to it. They also continued to pay electricity for the Shanghai apartment.^{Footnote 14}

[20] While the Claimant had an Ontario driver’s license in November 1999^{Footnote 15}, he admitted at the hearing that he never renewed it. He never owned or leased a car in Canada. The Claimant also set up a bank account in Canada on November 29, 2000.^{Footnote 16} However, he went back to China only four days later and did not return to Canada until August 30, 2002. His initial deposit was only $20.00, and it was actually a U.S. Dollar account. The account had no activity, other than automatic interest, until August 19, 2002.

[21] The Claimant said that he had a U.S. dollar account for ease of international use. For example, it was easier for him to deposit U.S. dollars into his account when he was in China. While this may be, it still does not show a deep connection to Canada before August 2002. While he said he also had a Canadian dollar account, and has such an account today, I saw no objective evidence of this in the Tribunal file. However, he also admits having a Chinese bank account. He needs that account to pay bills for the Shanghai apartment.^{Footnote 17} Ultimately, I assign little weight to his opening of a Canadian bank account in November 2000.

[22] Other ties to Canada were virtually non-existent. For example, the Claimant had no life insurance or health insurance during this time. He did not have a Canadian credit card until 2019. While he said he filed tax returns in Canada, it is not clear when he started filing them.

[23] The Claimant was not involved in any clubs, organizations, or associations in Canada during this time. He said he has never collected any provincial or federal benefits in Canada. He does not have a Canadian pension. However, he gets a pension from his former employer in China. I note that the Claimant originally said he only decided to live permanently in Canada in October 2002.^{Footnote 18} While he later changed his answer to September 1999, he did not change it until after his application was first denied.^{Footnote 19} In the circumstances, I give more weight to his original October 2002 answer. I also note that his 2002 Canadian visa said he was in the “Visitor” class.^{Footnote 20}

[24] I find that the Claimant was not resident in Canada before August 30, 2002. He had important family ties in both China and Canada. However, his longer presence in China and the various other ties he had to China during that time outweigh his Ontario driver’s license and a dormant U.S. dollar bank account. These ties include an apartment, utility contracts, and a retirement pension, none of which he had in Canada. He also did not form the intention to stay permanently in Canada until October 2002, nor had he applied yet for permanent residency.

(2) The period from April 30, 2011, to at least November 1, 2012

[25] While the Claimant focused on the period up to November 1, 2012, I will first consider the entire period from April 30, 2011, to April 29, 2013. After that, I will explain why I did not separately consider the period proposed by the Claimant.

[26] Between April 2011 and April 2013, the Claimant spent almost identical periods in Canada and China. He spent the six warmest months in Canada and the six coldest months in China. While the Presence Chart suggests he may have spent a little more time (one day in 2011, five days in 2012) in Canada, this tiny difference could be even less. I could reasonably assume that he left Canada the day before he arrived in China. That would remove one day of Canadian residence in both 2011 and 2012. In any case, the difference between stays in the two countries is minimal. It is also not the only factor in assessing residence. I must consider the Ding Factors and his situation as a whole. 

[27] Some things changed between August 2002 and the return to Canada in August 2011.    D. Y. and the Claimant were now permanent residents in Canada, although they were still Chinese citizens.^{Footnote 21} They also had OHIP coverage, although his driver’s license had expired.

[28] However, in many ways, their way of living in Canada was the same as it was before 2002. They did not own or rent the place in which they lived. They were living in London with their daughter, who now had a family of her own. They did not belong to any clubs or organizations, and it appears their interactions were confined mostly to Y. C.’s family. They were not as happy in London, due to the smaller Chinese community and fewer food choices.^{Footnote 22} The Claimant apparently attended two seniors’ events in London, but he could not recall when. He could not recall when he filed Canadian income tax returns. He never worked in Canada, nor did he get any benefits from federal or provincial social programs.

[29] Meanwhile, D. Y. and the Claimant still rented their Shanghai apartment. One of the Claimant’s brothers and two of D. Y.’s sisters were still alive in China. Y. C. said her parents would leave Canada so they could visit the Claimant’s brothers and friends in China. The Claimant said they wanted to visit and take care of their siblings while they still could. They missed local food and wanted to avoid Canadian winters.^{Footnote 23} He still had a Chinese bank account.

[30] I also note that they bought a round-trip ticket from Shanghai to Toronto (and back) in 2012.^{Footnote 24} This suggests Shanghai was their base, rather than Toronto. At the hearing, X. Y. confirmed that they always bought round-trip tickets, after their first visits.

[31] While the Claimant’s connection to Canada is slightly stronger after April 2011 than it was in 2000, that does not mean that he was a Canadian resident during that time. The onus of proving Canadian residence is on the Claimant. I find that his connection to Canada was mainly through his daughter’s family, but he had both personal and family connections to China. As he essentially split the time between the two countries, I find that his connections to China otherwise outweighed his connections to Canada. This means he was not resident in Canada between April 11, 2011, and either November 1, 2012, or April 29, 2013.

[32] I will now consider three important arguments made by the Claimant about this finding. The first argument is about how the Minister assessed successive periods of presence. The second argument is about how s. 21(4) of the Old Age Security Regulations applies to this case.^{Footnote 25} The third argument is that the Claimant is similar to Canadian “snowbirds”. The Claimant says “snowbirds” can still be Canadian residents despite spending the cooler months elsewhere.

Assessing successive periods of presence

[33] As noted, the Claimant’s presence is almost exactly equal in both Canada and China from April 30, 2011, to April 29, 2013. However, he correctly notes that he can “engineer” the time spent in each country by adjusting the period under consideration. For example, he spent roughly two thirds of his time in Canada between April 11, 2011, and November 1, 2012. On the other hand, he spent roughly only one third of his time in Canada between October 31, 2011, and April 29, 2013. This is a major difference, even though two thirds of the periods covered are the same.

[34] However, I must examine the “big picture”. The long period up to April 30, 2011, is unquestionably residence in China. I accept the period starting on April 29, 2013, as residence in Canada. I see a consistent pattern of movement for the two years between April 30, 2011, and April 29, 2013. There was no real change in the Claimant’s situation during those two years. It would be an artificial distinction to disregard the period between November 1, 2012, and April 29, 2013, when assessing the period after April 30, 2011. I also note that his pattern of movement shifted after April 29, 2013, to include longer stays in Canada.

[35] In my view, it is only logical to consider the period after April 2011 as one 2-year period or as two 1-year periods. Either way, for the reasons explained above, the Ding Factors do not support Canadian residency during those times. The Claimant’s presence is virtually the same in both countries, but the other Ding Factors still slightly favour residency in China.  

Paragraph 21(4)(a) of the Old Age Security Regulations

[36] The Claimant suggests that this provision (the “Temporary Absence Provision”) helps him establish Canadian residence for each year from 2011 to 2015.^{Footnote 26} However, as he already has Canadian residency from April 29, 2013, to November 9, 2015, the Temporary Absence Provision is only potentially relevant for the period leading up to April 29, 2013.^{Footnote 27}

[37] The Temporary Absence Provision says any interval of absence from Canada shall be deemed not to have interrupted that person’s residence or presence in Canada, if it is of a temporary nature and does not exceed one year.^{Footnote 28} However, he must be resident in Canada.

[38] I agree that the Claimant’s absences from Canada starting in October 2011 and November 2012 were each for less than one year. But this is not the only criterion. The absences must be of a “temporary nature”. Finally, and most importantly, the Temporary Absence Provision only applies if a person is already resident in Canada. The Claimant was not resident in Canada in April 2011. In fact, he had not been resident in Canada for nearly five years. This means he cannot use the Temporary Absence Provision to establish Canadian residence in 2011. That provision is intended to extend an existing period of Canadian residence, not create a new period of Canadian residence after residing outside Canada.    

The “Snowbird” argument

[39] I acknowledge that some people are still considered Canadian residents despite spending parts of each year in warmer climes. The Claimant suggests his situation is no different, as he also spent the colder months outside Canada after April 2011. However, as noted, the Ding Factors make clear that one’s physical presence is not the only factor.

[40] I must consider each case on its own merits. “Snowbirds” may have extensive connections to Canada that the Claimant does not have. For example, they may be Canadian citizens. They may exercise their right to vote. They may be extensively involved in their local communities. Their family members may all be in Canada. They may have investments, insurance policies, credit cards, real estate properties, or businesses in Canada. They may still work in Canada. They may own their homes, or rent in their own names. They may have utility contracts or pay municipal taxes in Canada. Snowbirds might meet some or all of these factors, but the Claimant does not have any of them for the periods claimed.

[41] The “snowbird” analogy does not help the Claimant. In fact, some “snowbirds” may no longer be Canadian residents either. Their connections to another country may outweigh their connection to Canada. I must consider the “big picture”, rather than just count the days.

Is the Claimant entitled to an OAS pension?

[42] As the Claimant has only 6 years and 313 days of residency in Canada up to April 10, 2019, he is not entitled to an OAS pension. He may have had additional Canadian residence since then. He may also accumulate additional Canadian residence in the future. He can still make a new OAS pension application in the future.

Conclusion

[43] The Claimant is not entitled to an OAS pension, because he had less than 10 years of Canadian residence by April 10, 2019. He may apply again in the future.

[44] The appeal is dismissed.