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

Decision

I find that the Appellant is not eligible for Guaranteed Income Supplement (GIS) benefits before July 2017 for the reasons that follow.

Overview

[1] The Minister received the GIS application under the Old Age Security Act (OASA Act). Following a reconsideration request, the Minister decided that the Appellant had re-established his residence in Canada on July 12, 2017. As a result, his application was approved with GIS benefits starting in July 2017. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal), arguing that he had returned to Canada permanently in 2013, not in July 2017.

Preliminary matters

[2] A hearing was scheduled for March 10, 2021. But, because of technical difficulties for the Minister’s representative, the hearing was adjourned and rescheduled for April 7, 2021.

Issue

[3] I have to decide whether the Appellant is eligible for GIS benefits before July 2017.

Applicable provisions

Old Age Security pension

[4] A full Old Age Security (OASA) pension is paid to individuals who have resided in Canada for at least 40 years after the age of 18.^{Footnote 1} If a person has not resided in Canada for at least 40 years, the legislation provides for the possibility of a partial pension. To be eligible for a partial pension, a person must have resided in Canada for at least 10 years.^{Footnote 2}

[5] If a person stops living in Canada and wants to receive an OASA pension while living in another country, the person must have resided in Canada after the age of 18 for at least 20 years.^{Footnote 3}

Guaranteed Income Supplement

[6] The GIS is an income-tested monthly benefit based on marital status that is paid to individuals who receive the OASA pension and reside in Canada. If a GIS recipient leaves Canada, that person can receive the GIS for only six months after the month of departure. This is so regardless of how many years of residence in Canada the person has.^{Footnote 4}

[7] Under the OASA Act,^{Footnote 5} the GIS may not be paid unless the pensioner has applied for it, and no supplement may be paid to a pensioner for any month that is more than 11 months before the month in which the application is received or is deemed to have been made or in which the requirement for an application has been waived, as the case may be.

Residence

[8] The Old Age Security Regulations (OASA Regulations) govern the issue of whether a person resides in Canada or is only present in Canada. A person resides in Canada if they make their home and ordinarily live in any part of Canada. A person is present in Canada when they are physically present in any part of Canada.^{Footnote 6}

Analysis

i. Documentary evidence

[9] On June 26, 2009, the Appellant applied for an OASA pension.^{Footnote 7} He stated that he had first entered Canada on October 19, 1971, and had lived continuously in Canada until June 9, 2009, when he signed the application.

[10] During a phone call on July 14, 2009,^{Footnote 8} the Appellant’s spouse informed the Minister’s representative that the Appellant had been in Haiti since September 2003 and that they were separated. That same day,^{Footnote 9} the Minister sent the Appellant a letter asking him to provide proof of his departure from Canada in September 2003 and to complete a questionnaire.

[11] On July 25, 2009,^{Footnote 10} the Appellant completed the questionnaire and indicated that he had left Canada in September 2003 because he was unable to find a job. He also indicated that he had returned to Canada in June 2008 and left in August 2008. He was renting out his apartment while he was away. He had not left any personal belongings in Canada. However, he did have a bank account in Canada, and he was still covered by Quebec’s health insurance plan. In Haiti, he was living with friends and family; he was a visitor and a permanent resident. He did not have a return date to Canada. He had driver’s licences in Canada and Haiti. He also had a car registered in Haiti. He added that he was coming back to Canada on holiday. In a later questionnaire, he indicated that his spouse was renting his apartment and that she was paying the rent.^{Footnote 11}

[12] After obtaining proof from the Appellant that he left Canada on September 25, 2003,^{Footnote 12} the Minister calculated the Appellant’s residence. On December 24, 2009, the Appellant was sent a choice letter^{Footnote 13} about the start of his pension. His choices were to either receive his pension at the rate of 31/40ths effective July 2009, or wait until he was entitled to a full pension after returning to live in Canada for a full year.

[13] On March 12, 2010,^{Footnote 14} the Appellant responded by choosing to receive his pension at the rate of 31/40ths effective July 2009. He signed his choice letter in Haiti. On April 21, 2010,^{Footnote 15} the Minister approved the Appellant’s application.

[14] On June 15, 2010,^{Footnote 16} the Appellant indicated in a questionnaire that he had returned to Canada on March 24, 2010, but that he was unsure whether he would stay permanently or return to Haiti. A passport stamp confirms his arrival in Canada on March 24, 2010.^{Footnote 17}

[15] According to an investigation report dated December 22, 2010, the Appellant submitted a GIS application in August 2010.^{Footnote 18}

[16] An interview report dated January 9, 2012,^{Footnote 19} indicates that the Appellant’s spouse said that he came to Canada in March 2010, underwent care, and left in September 2010.

[17] A report on the Appellant’s medical profile from March 24, 2010, to September 22, 2010,^{Footnote 20} shows medical visits between March 24, 2010, and September 15, 2010.

[18] On January 20, 2012,^{Footnote 21} the Minister found that the Appellant had been only present in Canada since March 2010 and that, as a result, he could not receive the GIS.

[19] On April 12, 2012,^{Footnote 22} the Appellant sent the Minister a reconsideration request. The Appellant indicated that he had been living in Canada for 33 years and that, the previous year, he had met the requirement by residing in Montréal for six months.

[20] On June 5, 2012,^{Footnote 23} the decision of January 20, 2012, was upheld with right of appeal to the Office of the Commissioner of Review Tribunals.

[21] In a letter dated August 29, 2017,^{Footnote 24} the Appellant indicated that, since 2013, he had been spending more time in Montréal than in Haiti, but he had failed to notify the Minister of this.

[22] The stamps in the Appellant’s passport valid from May 2012 to May 2017,^{Footnote 25} issued in Montréal, show entries and exits during those years, specifically one entry into Haiti on June 3, 2013, and one return to Canada on October 21, 2013.^{Footnote 26} Also, a Canada Border Services Agency report indicates entries into Canada in February, May, and October 2013.

[23] In a letter dated August 29, 2017,^{Footnote 27} the Appellant indicated that he would inform the Minister of his desire to spend more time in Canada than in Haiti at the appropriate time. He stated that it had been the case since 2013 but that he had forgotten to mention it and that he was doing it only now, on August 29, 2017.

[24] In questionnaires he signed on February 4, 2018,^{Footnote 28} and May 14, 2018,^{Footnote 29} the Appellant indicated that he had returned to Canada permanently, but he did not provide a return date. However, he submitted his passport valid from October 2007 to October 2012, issued in Haiti.^{Footnote 30}

[25] On October 15, 2018,^{Footnote 31} he also submitted his new passport, valid from June 2017 to June 2022, issued in Haiti.

[26] The Appellant submitted GIS applications in May 2018 for the payment periods of July 2015 to June 2016,^{Footnote 32} July 2017 to June 2018,^{Footnote 33} July 2018 to June 2019,^{Footnote 34} and July 2019 to June 2020.^{Footnote 35}

[27] The Appellant also submitted a lease for 1991^{Footnote 36} and two notices of rent increase for the lease from July 1, 2017, to June 30, 2018, and from July 1, 2018, to June 30, 2019 (GD2-126 and 127 for 2017 and 2018).^{Footnote 37}

[28] In a letter dated March 22, 2018,^{Footnote 38} the Appellant indicated that he had never left Canada for more than 183 days after 2013. In another letter,^{Footnote 39} he indicated again that he spent more time in Canada than in Haiti and that, since 2013, he had left Canada only once, for seven months.

[29] A May 3, 2019,^{Footnote 40} report of an interview with the Appellant indicates that his spouse, who was at the interview, explained that the Appellant had done very little travelling since 2017. The investigator told her that the Appellant still wanted a review of his eligibility for the GIS since 2013. The spouse confirmed that the Appellant was not in Canada at that time, which is why she had continued to declare herself single for the GIS. She insisted that the Appellant had truly been back in Canada permanently only since July 2017. In response to this statement, the Appellant admitted that he had been back in Canada permanently since July 2017. Before that, he did not share the costs of the apartment with his spouse. He had since been living with his spouse, and he shared household tasks and costs.

ii. Minister’s position

[30] The Minister argues that, on June 15, 2010, the Appellant answered in a questionnaire from the Minister that, in March 2010, he had not made a decision about his definitive return to Canada. In the letter dated August 29, 2017, the Appellant referred to that letter, saying that he would inform Service Canada of his desire to spend more time in Canada than in Haiti at the appropriate time. He stated that it had been the case since 2013, but that he had forgotten to mention it to Service Canada and that he was doing it only now, on August 29, 2017. The date of this letter, combined with the lack of any GIS application by the Appellant between 2012 and 2018, the sale of his car in Haiti around May 2017, his entry into Canada on July 11, 2017, and his own admission during the May 3, 2019, interview that he re-established his principal residence in Canada in July 2017, shows that the Appellant was not a Canadian resident until July 2017. In addition, the Minister submits that, because the Appellant filed his GIS application on May 9, 2018, no GIS may be paid before June 2017, in accordance with section 11(7)(a) of the OASA Act, that is, 11 months before he filed his application, even if the date of his re‑establishment in Canada were to be changed.

iii. Testimony

[31] At the hearing, the Appellant explained that he had called and sent a letter in 2013. At the time, he asked about taxes for non-residents. He was back in 2013, well [before] July 2017.

[32] However, he admitted to failing to notify the Minister of his return before 2017.

[33] When asked about his spouse’s admissions that he was not in Canada before July 2017, he did not provide a clear answer in that regard.

iv. Residence – a factual issue

[34] The GIS is payable to an OASA pension recipient who resides in Canada. The GIS is not payable to a person who is absent from Canada for six consecutive months, exclusive of the month they left Canada. In addition, it is not payable six months after a person has stopped residing in Canada. Furthermore, the GIS is not payable for any month that is more than 11 months before the month in which the application is received.

[35] The Federal Court has considered the issue of residence in Canada. In Singh,^{Footnote 41} the Court stated the following:

[29] It is trite law that residency is a factual issue that requires an examination of the whole context of the individual under scrutiny: Canada (Minister of Human Resources Development) v Ding, 2005 FC 76 at paras 57-58 [Ding]. Intent does not equate to residence for the purpose of the [OASA Act].

[36] The decisions Ding (above) and Duncan^{Footnote 42}also discuss the concepts of residence and domicile:

In Ding, Justice Russell stated [sic]:

[51] As described above, residence, however one is to interpret it, must be contrasted with the notion of domicile, which is focused on the intention of an individual. The wording of paragraph 21(1)(a) of the OASA Regulations makes the factual component of the definition of residence under the OASA even clearer. In tying the notion of residence to a person’s home (“demeure” in the French version) and using the words “ordinarily lives” (“vit ordinairement” in the French version), there can be no doubt that a person will have to establish that Canada is or was, for the amount of time required by the Act, the place where he or she is factually anchored.

[37] In addition, Ding sets out a non-exhaustive list of factors to be considered to guide the Tribunal in deciding the issue of residence:

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

[38] It is therefore clear that, according to the OASA Act and case law, residence is a factual issue that requires an examination of the whole context of the Claimant’s circumstances. I am aware that the Appellant says he returned to live in Canada permanently in 2013. However, according to the documentary evidence, he continued to leave Canada regularly between 2013 and 2017. The investigation and interview reports indicate that the Appellant did not return to live in Montréal permanently until July 2017. His apartment was rented by his spouse, from whom he was separated, and she paid the rent until 2017. The May 3, 2019, interview report indicates that the Appellant’s spouse confirmed that he was not in Canada in 2013, which is why she had continued to declare herself single for the GIS. She insisted that the Appellant had truly been back in Canada permanently only since July 2017. In response to this statement, the Appellant admitted that he had been back in Canada permanently since July 2017. Before that, he did not share the costs of the apartment with his spouse. He had since been living with her, and he shared household tasks and costs. Despite the Appellant’s explanation at the hearing that he had failed to notify the Minister in 2013 of his return, the evidence submitted indicates that Haiti was the place where he was factually anchored, from his departure in September 2003 until July 2017. Even though his children were in Canada, and he returned to Canada every year, he had no other ties in Canada until his return in July 2017.

[39] In addition, even though the Appellant says he failed to notify the Minister in 2013, it appears that he did not notify the Minister of his return until 2017 through a letter dated August 29, 2017. And he did not apply for the GIS until May 2018, almost five years after his return.

[40] The OASA Regulations say that a person resides in Canada if they make their home and ordinarily live in any part of Canada. Based on the facts, the Appellant did not ordinarily live in Canada until his return in July 2017.

Conclusion

[41] For these reasons, the Appellant is not eligible for GIS benefits before July 2017.

[42] The appeal is dismissed.