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

Decision

[1] The appeal is dismissed.

[2] The Appellant, N. E., isn’t eligible for Old Age Security (OAS) because he hasn’t resided in Canada for 10 years. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant, his wife and children moved to Canada from Gaza, Palestine, on July 16, 2001. The Appellant worked in Canada until August 16, 2008, when he quit his Canadian job and started working abroad either as an employee or freelance. He retired in 2021 but didn’t return to Canada until February 6, 2023, when he came here with his second wife. The Appellant’s first wife and the mother of his children died in July 2017 in Palestine.

[4] The Appellant says that since moving to Canada in July 2001, Canada has been his home even if he worked abroad. He says he and his extensive family are all Canadian. Despite working abroad for many years, he says he maintained a house, supported his family, filed income tax, maintained bank accounts and spent as much time as he could in Canada. He says he is Canadian.

[5] The Minister says that from August 16, 2008, to February 5, 2023, the Appellant didn’t reside in Canada, he was only present here for periods of time.

What the Appellant must prove

[6] For the Appellant to succeed, he has to prove that he has resided in Canada for at least 10 years.

[7] The Appellant has to prove this on a balance of probabilities. This means he has to show it is more likely than not that he resided in Canada during the relevant period.^{Footnote 1}

Reasons for my decision

[8] The Minister agrees that the Appellant resided in Canada:

• from July 16, 2001, to August 16, 2008
• from February 6, 2023, to August 28, 2023 (the date of the Minister’s decision)

[9] I focussed my analysis on the period in dispute, which is from August 16, 2008, to February 5, 2023. I also considered where the Appellant resided since the Minister’s decision.

[10] I find that the Appellant didn’t reside in Canada between August 16, 2008, to February 5, 2023. He has resided in Canada since February 6, 2023.

The test for residence

[11] The law says that being present in Canada isn’t the same as residing in Canada.

[12] “Residence” and “presence” each have their own definition. I must use these definitions in making my decision.

[13] A person resides in Canada if they make their home and ordinarily live in any part of Canada.^{Footnote 2}

[14] A person is present in Canada when they are physically present in any part of Canada.^{Footnote 3}

[15] When I am deciding whether the Appellant resided in Canada, I must look at the overall picture and factors such as:^{Footnote 4}

• where he had property, like furniture, bank accounts, and business interests
• where he had social ties, like friends, relatives, and membership in religious groups, clubs, or professional organizations
• where he had other ties, like medical coverage, rental agreements, mortgages, or loans
• where he filed income tax returns
• what ties he had to another country
• how much time he spent in Canada
• how often he was outside Canada, where he went, and how much time he spent there
• what his lifestyle was like in Canada
• what his intentions were

[16] This isn’t a complete list. Other factors may be important to consider. I must look at all the Appellant’s circumstances.^{Footnote 5}

The Appellant didn’t reside in Canada from August 16, 2008 to February 5, 2023

[17] I find that the Appellant didn’t reside in Canada from August 16, 2008, to February 5, 2023.

[18] For this period, I looked at when the Appellant was present in Canada. Presence isn’t the only thing to consider in deciding residence. But it is a factor especially if a person had ties to more than one country, which I find that the Appellant did.

[19] The Appellant was present in Canada during this period as follows:

[20] The Appellant’s lengthy absences from Canada, with significantly shorter stays in Canada, is compelling evidence that he didn’t reside in Canada. But there is more that tells me the Appellant didn’t reside in Canada during this time.

[21] In a completed questionnaire, the Appellant said his job in Canada didn’t give him “the flexibility of moving and traveling to visit my relatives abroad. Therefore, [he] decided to work as a freelance consultant as [he] was doing before coming to Canada.”^{Footnote 6} This tells me that he had important family connections outside of Canada, as well as in Canada.

[22] The Appellant says he always had a home in Canada. This is true but he also owns property with his family in Gaza, Palestine. And during this period, he wasn’t living in hotels but lived in rented homes and with family. He had furniture. In other words, he maintained residences in and outside of Canada.

[23] The Appellant says that he always filed Canada income taxes. This is true but his business operations and income during this period were outside Canada.

[24] The Appellant says he intended to return to Canada in 2018, but the death of his wife in Palestine in 2017 had a significant impact on him. He was then further delayed waiting for his second wife (from Palestine) to get her Canadian permanent residence.

[25] I have considered his intentions and tragedies. They don’t tell me that he resided in Canada after 2018. He continued to work in Gaza, Palestine, until he retired in 2021. After that, he was living with his wife in Gaza, Palestine, until she got permanent residence status in Canada and moved here with him in February 2023.

[26] The Appellant says his family are Canadian, and that Canada was always their home even if he worked abroad. He supported them in Canada. They went to school here and lived here. This appeal is not about where his family resided. It is about where the Appellant resided.

[27] I find that the Appellant didn’t reside in Canada during this period. He made his home and ordinarily lived outside of Canada for this period. The time he spent in Canada visiting with his family was presence only, not residence.

The Appellant reestablished residence in Canada on February 6, 2023

[28] The Appellant reestablished residence in Canada on February 6, 2023. This is when he re-entered Canda with his second wife. The Minister doesn’t dispute this.

[29] At the hearing, the Appellant told me he has taken trips outside of Canada since February 6, 2023, but his trips abroad were brief. I believe him.

The Appellant has resided in Canada for less than 10 years

[30] I find that the Appellant resided in Canada as follows:

• from July 16, 2001, to August 16, 2008, which is 7 years, 1 month, and 1 day
• from February 6, 2023, to April 8, 2025, which is 2 years, 2 months, and 3 days

[31] This is less than 10 years.

Conclusion

[32] The Appellant hasn’t resided in Canada for 10 years.

[33] This means the appeal is dismissed.