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

Decision

[1] The appeal is dismissed.

[2] I find that the period from April 16^th, 1986, to December 31^st, 1987, cannot be included in the Appellant’s residency.

Overview

[3] The Appellant was born in the United States of America on March 29^th, 1943. He is Canadian by birth as he is the son of a Canadian citizen.^{Footnote 1} He applied for an Old Age Security (OAS) pension where he reported his periods of residence in Canada after turning 18 to be from March 29^th, 1961, to October 1, 1969, for a total of 8 years, 6 months, and 2 days, and from April 16^th, 1986, to December 31^st, 1987.^{Footnote 2} The Minister approved a partial OAS pension of 8/40^th based on the first period of residence submitted by the Appellant by means of totalization as per the Agreement on Social Security between Canada and the United States of America.

[4] The Minister did not consider the second period of residence he submitted in his OAS application, April 16^th, 1986, to December 31^st, 1987. The Appellant requested a reconsideration by the Minister.^{Footnote 3} The Minister maintained his decision after reconsideration.^{Footnote 4}

[5] The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).^{Footnote 5}

What is the Appellant’s position?

[6] The Appellant disagrees with the residence calculation made by the Minister and submits that he was a resident of Canada from April 16^th, 1986, to December 31^st, 1987, when he worked in Canada. He was physically in Canada, purchased a house and lived with his family in Canada.

What is the Minister’s position?

[7] The Minister believes that the Appellant cannot include the period from April 16^th, 1986, to December 31^st, 1987, as Canadian residency as he is subject to the legislation of the Unites States of America as per the terms of the Agreement Between the Government of Canada and the Government of the United States of America with Respect to Social Security.^{Footnote 6}

What the Appellant must prove

[8] For the Appellant to succeed, he must prove that he was not subject to the legislation of the United States of America during his period in Canada from April 16^th, 1986, to December 31^st, 1987.

Reasons for my decision

Credibility of the Appellant

[9] The Appellant came across as a very trustworthy person. He answered questions directly, completely and without hesitation.

Who is entitled to an OAS pension?

[10] A partial pension may be paid to a pensioner. The pensioner must have attained sixty-five years of age and have resided in Canada for an aggregate period of at least 10 years after attaining eighteen years of age. If the pensioner is not a resident of Canada the day before the approval of a pension, this person must have resided in Canada for at least 20 years after reaching eighteen years of age.^{Footnote 7}

[11] For the purpose of the OAS Act and its regulations, a person resides in Canada if he makes his home and ordinarily lives in any part of Canada. This concept is different from presence in Canada. A person is present in Canada when he is physically present in any part of Canada.^{Footnote 8} A person can be present in Canada without being a resident of Canada.

[12] Residency is a factual issue that requires an examination of the whole context of the individual. The subjective intentions of the person are not decisive in determining residency. The Ding^{Footnote 9} decision established a non-exhaustive list of factors a Tribunal can consider when determining residency:

1. a. Ties in the form of personal property.
2. b. Social ties.
3. c. Other ties to Canada (medical coverage, driver’s licence, rental lease, tax records, etc.).
4. d. Ties in another country.
5. e. Regularity and length of stays in Canada in relation to the frequency and duration of absences from Canada.
6. f. Lifestyle and mode of living of the person or is the person’s living arrangements in Canada significantly rooted in Canada.^{Footnote 10}

Agreement on Social Security between Canada and the United States of America

[13] Section 40 of the OAS Act permits the Minister to enter into reciprocal agreements with the governments of other countries, and this provision contemplates that such agreements might affect eligibility for pensions.

[14] Subsection 21(5.3) of the OAS Regulations states that where, by virtue of an agreement entered into under subsection 40(1) of the OAS Act, a person is subject to the legislation of a country other than Canada, that person shall, for the purposes of the Act and the OAS Regulations, be deemed not to be resident of Canada.

[15] Pursuant to section 40 of the OAS Act, Canada has entered into a number of reciprocal agreements, including an agreement with the United States of America (USA).^{Footnote 11}

[16] Part 3, Chapter 2, Article 8 of the Agreement states that “For the purposes of establishing entitlement to a pension by means of totalization, a quarter of coverage under United States laws on or after January 1, 1952, and after the attainment of age 18, shall be counted as three months of residence in Canada”. This is the section of the Agreement that helped the Appellant qualify for a partial OAS pension.

[17] Part 2, Article 6, section 3 of the Agreement states that “Where a person referred to in Article V(2)^{Footnote 12} is subject to United States laws during any period of residence in the territory of Canada, that period, in respect of that person, his spouse and dependants who reside with him and who are not employed or self-employed during that period, shall not be treated as residence in Canada for the purposes of the OAS Act”.

[18] This provision of the Agreement is what is most relevant in this matter.

The Appellant and the Agreement between Canada and the USA

[19] I will now consider the factors established in the Ding decision in my analysis to decide whether the Appellant was a resident of Canada. To come to my conclusion, I will use the documents submitted by both parties up to the date of this decision and the testimonies I have heard at the hearing.

[20] The Appellant had strong ties to Canada for the period from April 16^th, 1986, to December 31^st, 1987. He owned a house in Toronto, and he lived in this house with his family. He is a Canadian citizen by birth and was legally working in Canada.

[21] There are sufficient factors that lead the Tribunal to believe that the Appellant was a resident of Canada from April 16^th, 1986, to December 31^st, 1987. He lived in Toronto with his family and he was working in Canada. Furthermore, during that period, the regularity and length of stays in Canada in relation to the frequency and duration of absences from Canada, and his lifestyle and mode of living demonstrate that he was rooted in Canada during that period.

[22] However, as indicated above, the factor that has the greatest impact in this matter is the Agreement.

[23] During this period, the Appellant was covered under the Social Security Administration of the USA for the whole years of 1986 and 1987.^{Footnote 13}

Conclusion

[24] The Tribunal must apply the OAS Act including the Agreement with the Government of the United States. Therefore, given the Appellant was covered under the laws of the United States for its pensions scheme for the time he was in Canada in 1986 and 1987, the period from April 16^th, 1986, to December 31^st, 1987, cannot be used as a period of residence in Canada for the purpose of assessing the Appellant’s eligibility to an OAS partial pension.

[25] I find that the period from April 16^th, 1986, to December 31^st, 1987, cannot be included in the Appellant’s residency.

[26] This means the appeal is dismissed.