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

Decision

[1] The appeal is dismissed.

[2] The Appellant, A. C., wasn’t eligible for an Old Age Security (OAS) allowance benefit for the period of April 2018 to August 2021.

[3] This decision explains why I am dismissing the appeal.

Overview

[4] The Appellant applied for an allowance benefit in May 2018. He said he was married on his application. He also signed a statutory declaration saying he was married.^{Footnote 1} The Minister of Employment and Social Development (Minister) approved his application on the basis that he was married.^{Footnote 2}

[5] The Minister says the Appellant made a call to Service Canada saying he was separated. The Appellant provided a letter and a notarized document saying he and the Added Party separated in December 2017 and reconciled in August 2021.^{Footnote 3}

[6] Based on this information, the Minister wrote a letter to the Appellant in September 2021. It explained that because he was separated from the Added Party he should not have got the allowance from April 2018 to August 2021. Because he got money he wasn’t entitled to, he was overpaid. He has to pay back the overpayment.^{Footnote 4}

[7] The Appellant asked the Minister to reconsider its decision. He thought the Minister would have been aware of the change in his marital status because be thought all government agencies shared information. He also thought his repayment amounts were too high.^{Footnote 5} The Minister denied the Appellant’s request and maintained its position.^{Footnote 6}

[8] The Appellant appealed the Minister’s reconsideration decision to the Social Security Tribunal (Tribunal).^{Footnote 7} In the Appellant’s appeal, he said he disagreed with the total amount of the overpayment. He has bills and it is difficult to manage. Later, in a letter dated August 2023, the Appellant and the Added Party sent a letter saying they were separated in December 2017 and reconciled on October 17, 2018.^{Footnote 8}

[9] The Minister says the evidence shows the Appellant and the Added Party separated in December 2017 and reconciled in August 2021. So, the Appellant isn’t entitled to the allowance from April 2018 to August 2021.

Matters I have to consider first

The Appellant wasn’t at the hearing

[10] A hearing can go ahead without the Appellant if he got the notice of hearing.^{Footnote 9} I decided that the Appellant got the notice of hearing. So, the hearing took place when it was scheduled, but without the Appellant or Added Party.

[11] This hearing has been rescheduled many times.

[12] A hearing was recently scheduled on October 2, 2024. The Appellant didn’t attend. The Tribunal called the Appellant. In that call, the Appellant asked to reschedule because of his health. I granted that request. We agreed to reschedule the hearing for October 10, 2024. I explained that the hearing would proceed on October 10, 2024. I also said if the hearing needed to be rescheduled for medical reasons again, he would need to provide a medical note. The Appellant indicated he understood and agreed.

[13] The Appellant and the Added Party were emailed a new notice of hearing with these instructions on October 2, 2024. Tracking information shows the new notice of hearing was also delivered to them on October 4, 2024.^{Footnote 10} A medical note was sent on October 10, 2024, showing the Appellant attended a medical appointment. The note also said the Appellant had a follow-up appointment on October 29, 2024, and November 7, 2024.^{Footnote 11} The hearing was rescheduled for October 22, 2024.

[14] The Tribunal sent a new notice of hearing to the parties on October 10, 2024, by email.^{Footnote 12} On October 15, 2024, the Tribunal called the Appellant and Added Party. He said he planned to attend the hearing. The Added party said she would not attend.

[15] The Appellant didn’t attend the hearing on October 22, 2024. I waited 30 minutes for the Appellant and Added Party to attend. They did not. After the hearing, I reviewed the file. I saw the Appellant sent two emails to the Tribunal. The first was a doctor’s referral form sent the evening of October 21, 2024. In the second email (sent at 9:50 a.m. on the date of the hearing), he asked for an adjournment because of illness.

[16] I rejected the late document (the doctor referral form). I have written a letter with my reasons, but I will summarize them here as well. There is no name included with the letter. There is a fax stamp date of November 2018. There is no appointment date or time included with the letter. The letter has been left blank.

[17] There was nothing included in the Appellant’s email with the form to show why it was sent. There is nothing included with the form to indicate that the letter actually belongs to the Appellant. There is nothing included with the form showing the Appellant is unable to participate in the hearing for medical reasons.

[18] I also considered the Appellant’s email about rescheduling the hearing. He didn’t get a reply back from the Tribunal rejecting or accepting his request before the hearing. He didn’t attend the hearing to get confirmation. He didn’t explain why his illness stopped him from attending the hearing in his letter. He also didn’t provide a medical note showing why he could not come to the October 22, 2024, hearing. 

[19] I have considered the rules at the Tribunal about rescheduling a hearing.^{Footnote 13} I believe I have been fair. I decided not to reschedule the hearing. I can only reschedule a hearing if it is necessary for a fair hearing.^{Footnote 14} I decided that the hearing would still be fair, even if it wasn’t rescheduled.

[20] The Appellant and the Added Party’s filing deadline ended over a year ago – August 15, 2023. Neither party filed any information during their right of reply (October 27, 2023). I have let the Appellant have multiple opportunities to participate in the hearing at a later date. I have offered the Appellant the chance to participate in writing. I have rescheduled the hearing six times.^{Footnote 15} I have explained to the Appellant that he needed a medical note to show why he could not participate in the hearing. He didn’t provide one.

What the Appellant must prove

[21] The Appellant has the burden of establishing his claim for an allowance benefit.^{Footnote 16}

[22] To get an allowance benefit, a person must be 60 to 64 years old and must be the spouse or common-law partner of a pensioner getting a guaranteed-income supplement (GIS). If the spouses become separated, the allowance payments are suspended the third month of separation.^{Footnote 17}

[23] There is no dispute about how old the Appellant was when he got the allowance, or if the Added Party (the Appellant’s wife) was getting the GIS. The only issue in this appeal is when the Appellant was separated from and reconciled with his wife.

[24] The OAS Act doesn’t define “separated.” To decide what “separated” means for the appeal, I have to look at the ordinary meaning of the word and consider how it fits in with the purpose of the OAS Act and the intention of Parliament^{Footnote 18}

[25] “Separated” generally describes people or things that are apart. But when we talk about married people being separated, we usually mean more than that. We mean they are apart because at least one of them has decided they no longer want to live or be seen as a married couple and has acted on that decision.

[26] For the Appellant to succeed, he must prove that he wasn’t separated from the Added Party while getting an allowance benefit.

Reasons for my decision

[27] The Appellant separated from the Added Party in December 2017.^{Footnote 19} The Appellant and the Added Party more than likely reconciled in August 2021. He should not have been getting an allowance from April 2018 — three months after the separation, to August 2021 — the month they reconciled.

[28] As mentioned, the Appellant says he reconciled with the Added Party on October 17, 2018. The Minister says they reconciled in August 2021.^{Footnote 20}

[29] There is evidence showing the Appellant and the Added Party likely lived together from 2017 onward. There are documents showing they both resided at a house in Brampton. But, separated spouses can still live under the same roof.^{Footnote 21}

[30] There isn’t evidence about the Appellant and the Added Party’s relationship discussing their behaviour toward one another, or how they represented themselves to other people when they say they reconciled from October 2018, onward.

[31] The Appellant and the Added Party didn’t attend the hearing, so I could not ask them questions about their relationship. So, I considered all the information included with this appeal file when making my decision.

[32] The Appellant and the Added Party were more than likely separated from 2018 to 2020.

[33] In the Appellant’s May 2018 application for the allowance, he said he was married to the Added Party. They signed a statutory declaration dated January 2018, saying the same.^{Footnote 22} However, a notice based on the Appellant’s GST/HST credit lists his marital status as single for the year 2018.^{Footnote 23}

[34] Recently, the Appellant and the Added party sent a commissioned letter dated October 2018, saying they reunited in October 2018. This letter conflicts with the notarized letter he signed in 2021, which I will discuss later. It also conflicts with the representation he made to the CRA for GST/HST. So, I don’t find it reliable.^{Footnote 24}

[35] There is a letter dated July 2023, from a paralegal showing the Appellant and the Added party retained him in November 2019, for a car accident the month before.^{Footnote 25} I find being in a car accident together during this period doesn’t show the Appellant or the Added Party were married or separated. It just shows they were in an accident together. 

[36] In 2019, the Appellant and the Added Party represented themselves as single on government documents. A Canada Revenue Agency (CRA) income screen shows that for the 2019 income year the Appellant said he was single. An income tax and benefit return for the Added Party also show they were separated in 2019.^{Footnote 26}

[37] The Added Party’s evidence shows she considered herself separated in 2020. A CRA income screen shows that for the 2020 income year, the Appellant represented himself as married.^{Footnote 27} However a letter from the Added Party dated August 2020, she says she filed her taxes as “separated.” And, her tax notice for 2020 also shows her marital status as separated.^{Footnote 28}

[38] I find the Appellant and the Added Party more than likely reconciled in 2021.

[39] The Appellant said the August 2021 date was said in error because of his disability, depression, and short-term memory. ^{Footnote 29} However, there was no medical evidence included with the file showing he had confusion, poor memory, or any other cognitive limitations that affected his ability to provide the correct date.

[40] The Appellant submitted documents to Service Canada and filed taxes showing he was separated in August 2021. In August 2021, the Appellant and the Added Party signed a notarized letter saying they reconciled the first week of August 2021.^{Footnote 30} In September 2021, the Appellant filled out a questionnaire from Service Canada saying he was married to the Added Party as of August 2021.^{Footnote 31} The Appellant and the Added Party’s tax returns show they reconciled in 2021.^{Footnote 32}

[41] The Appellant didn’t dispute the date of his reconciliation for years after he was notified of the overpayment. In the Appellant’s October 2021 letter to the Minister, he doesn’t dispute that he was separated. In fact, he said he was under the impression that all government agencies would have that information on file. He also didn’t dispute the dates of his separation in his May 2023 notice of appeal.^{Footnote 33} To me, this shows he was aware of the dates and only dispute the income.

[42] The Appellant hasn’t shown he was entitled to an allowance benefit. The evidence shows he was separated from the Added Party from December 2017 to August 2021. 

The Tribunal doesn’t have equitable jurisdiction

[43] The Appellant said he had financial hardship because of the amount of his overpayment. However, I can’t make my decisions on compassionate reasons. The law says I can’t make a decision because I think it would be fair, or because I want to help him out in difficult circumstances.

[44] The Minister says it can review the amount of the Appellant’s monthly repayment and adjust it to meet his financial needs.^{Footnote 34} This happens through the Minister (whom the Appellant may know as Service Canada). It doesn’t happen through the Tribunal.

Conclusion

[45] I find the Appellant wasn’t eligible for the allowance from April 2018 to August 2021 because he was separated from the Appellant. He has to pay back any amounts owed because he got paid when he wasn’t to.

[46] This means the appeal is dismissed.