Date: 20061122
Docket: A-391-05
Citation: 2006 FCA 380
CORAM: LINDEN J.A.
NOËL
J.A.
EVANS
J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Applicant
and
CAMILLE TAIT
Respondent
and
BARBARA WALLEY
Respondent
REASONS FOR JUDGMENT
LINDEN J.A.
[1]
This
application for judicial review concerns a decision of the Pension Appeals
Board (the “Board”), dated August 5, 2005, which upheld the decision of the
Review Tribunal which designated Camille Tait as the “survivor” of her
separated legal husband, Hugh Tait, as that term is defined in section 42 of
the Canada Pension Plan, R.S.C. 1985, c. C-8 (the “Plan”), even
though the undisputed evidence indicated that he had been in a common-law
relationship with another woman, Ms. Walley, for many years prior to his death.
Facts
[2]
The
facts are summarized as follows. Mrs. Tait was legally married to Hugh Tait, the
deceased contributor, from November 1950 to the time of his death on August 15,
2001. However, she had been living separate and apart from the deceased
contributor since 1973.
[3]
Mrs.
Tait applied for a survivor’s pension on December 20, 2001. On her application
form, she indicated that she was not living with the deceased contributor at
the time of his death. Included in her application was a statutory declaration
that she lived separate and apart from the deceased contributor since 1973 due
to “irreconcilable differences”, and that during that time, he lived in a
common-law relationship with Barbara Walley.
[4]
In
her application, Mrs. Tait provided the home address of the deceased
contributor as 117 Caulder Drive, Oakville, Ontario. In her
statutory declaration, she provided the same address for Ms. Walley.
[5]
Ms.
Walley also applied for a survivor’s pension on May 15, 2002. Included with
her application was a statutory declaration that she lived with the deceased
contributor in a common-law relationship from 1975 to the date of his death,
and that they resided together in a house owned by her at 117 Caulder
Drive,
Oakville, Ontario. Ms. Walley
also included an affidavit, the deceased’s Will dated December 30, 1998, and a spousal
waiver form for the purposes of the Ontario Teachers’ Pension Plan, wherein the
deceased contributor declared himself as the spouse of Ms. Walley.
[6]
In
the deceased contributor’s Will, he referred to Mrs. Tait as “my estranged
wife” and Ms. Walley as “my common-law wife”. The deceased contributor
designated Ms. Walley as the beneficiary of all benefits arising under any
registered retirement savings plan or registered retirement income fund owned
by him at his death. He designated Mrs. Tait as the beneficiary of the
proceeds of any other pension plan in which he has an interest, which, we are
told, was meant to apply to the Plan’s survivor pension. Ms. Walley was named
an executor of the Will.
[7]
On
April 18, 2002, Mrs. Tait’s application was denied by the Minister, that the
deceased contributor was living in a common-law relationship with Ms. Walley for
at least 12 months prior to his death. Therefore, Mrs. Tait was not, in the
Minister’s view, the “survivor” of the deceased contributor for the purposes of
the Plan. By letter dated June 25, 2002, Mrs. Tait requested a reconsideration
of the decision.
[8]
By
letter dated June 28, 2002, Ms. Walley declined any claim she had, as the
common law wife of the deceased contributor, to the survivor’s pension. In her
letter, she wrote:
According to
Mr. Tait’s will, and his wishes as understood by me, his estranged wife Camille
Tait was to receive this pension. Mr. Tait has always sent Camille Tait the
amount of this pension for her living expenses. It is necessary for Camille
Tait to have this pension in order to meet expenses and so I beseech you to
award this survivor pension of Hugh Tait to Camille Tait.
[9]
Despite
this letter, the Minister, by letter dated July 18, 2002, informed Ms. Walley
that she was eligible for the survivor’s pension because she cohabited with the
deceased contributor in a common-law relationship “for about 26 years before he
died in August 2001”.
[10]
By
letter dated September 26, 2002, the Minister confirmed his earlier decision in
respect of Mrs. Tait. The decision explained:
In this case, another person was living in a common-law
relationship with Hugh C. Tait at least one year before his death on August 15,
2001. Under the Plan we must consider this person to be the surviving spouse,
and we can grant the pension only to this person. Therefore, even though you
are the separated legal spouse, you are not eligible for the benefit.
[11]
On
October 15, 2002, Mrs. Tait appealed the Minister’s decision to the Office of
the Commissioner of Review Tribunals. Her appeal was on compassionate grounds,
namely that she requires the survivor’s pension because she now carries the
full responsibility for herself and the deceased contributor’s schizophrenic
son.
[12]
In
a decision dated September 23, 2003, the Review Tribunal allowed Mrs. Tait’s
appeal. Relying on Ms. Walley’s withdrawal of her application, and on the
absence of any conflict between the two women, the Review Tribunal found Mrs.
Tait to be the “survivor pursuant to the Canada Pension Plan.”
[13]
The
Minister appealed the decision to the Board. In a decision dated August 5,
2005, the Board dismissed the appeal. This is the decision under review.
[14]
On
November 6, 2006, Noël J.A. directed that two letters from Ms. Walley, received
by the Registry October 26, 2006, be distributed to the members of the panel
who were to hear the application. One such letter, addressed to the Court,
states:
I am one of
the respondents in this case. I regret that I will not be able to attend the
hearing on Nov. 16, 2006. I wrote a letter to you in June of 2002. That
letter was written as a result of misinformation. I WISH TO WITHDRAW THAT
LETTER OF JUNE, 2002. I am the Common Law Spouse of Hugh Tait. I lived with
him as his wife, at 117 Caulder Dr., Oakville, Ontario for twenty
six years. I therefore qualify as the true recipient of Hugh Tait’s CPP. I am
entitled to this pension.
The second letter is addressed to Mr. Gray,
who appeared as counsel for the Minister in this appeal. That letter states:
Please find enclosed my
request re: file no: IHRD 2255-322. Is this letter sufficient defence for my
request to retain my pension? Who do I send the letter to?
While these two letters were admitted, Noël
J.A. directed that Ms. Walley’s prior letter, dated June 28, 2002, was to
remain part of the record, which it has.
Relevant
Statutory Provisions
[15]
Paragraph
44(1)(d) of the Plan outlines the eligibility requirements for a survivor’s
pension:
|
44. (1)
Subject to this Part,
(d) subject to subsection (1.1), a survivor’s pension
shall be paid to the survivor of a deceased contributor who has made
contributions for not less than the minimum qualifying period, if the
survivor
(i) has reached sixty-five years of age, or
(ii) in the case of a survivor who has not reached sixty-five
years of age,
(A) had at the time of the death of the contributor reached
thirty-five years of age,
(B) was at the time of the death of the contributor a survivor
with dependent children, or
(C) is disabled;
|
44. (1) Sous
réserve des autres dispositions de la présente partie:
(d) sous réserve
du paragraphe (1.1), une pension de survivant doit être payée à la personne
qui a la qualité de survivant d’un cotisant qui a versé des cotisations
pendant au moins la période minimale d’admissibilité, si le survivant:
(i) soit a atteint l’âge de soixante-cinq
ans,
(ii) soit, dans le cas d’un
survivant qui n’a pas atteint l’âge de soixante-cinq ans:
(A) ou bien avait au moment du
décès du cotisant atteint l’âge de trente-cinq ans,
(B) ou bien était au moment du
décès du cotisant un survivant avec enfant à charge,
(C) ou bien est invalide;
|
[16]
Subsection
42(1) of the Plan defines a “survivor” as follows:
|
42. (1) In this part,
[…]
“survivor”,
in relation to a deceased contributor, means
(a) if there is no
person described in paragraph (b), a person who was married to the
contributor at the time of the contributor’s death, or
(b)
a person who was the common-law partner of the contributor at the time of the
contributor’s death;
|
42. (1) Les définitions qui suivent s’appliquent
à la présente partie.
[…]
« survivant »s’entend:
(a)
à défaut de la personne visée à l’alinéa (b), de l’époux du cotisant au décès
de celui-ci;
(b)
du conjoint de fait du cotisant au décès de celui-ci.
|
[17]
Subsection
2(1) of the Plan defines a “common-law partner” as follows:
|
“common-law
partner”, in relation to a contributor, means a person who is cohabiting with
the contributor in a conjugal relationship at the relevant time, having so
cohabited with the contributor for a continuous period of at least one year.
For greater certainty, in the case of a contributor’s death, the “relevant
time” means the time of the contributor’s death.
|
« conjoint
de fait » La personne qui, au moment considéré, vit avec un cotisant
dans une relation conjugale depuis au moins un an. Il est entendu que, dans
le cas du décès du cotisant, « moment considéré » s’entend du
moment du décès.
|
Pension
Appeals Board Decision
[18]
The
Board dismissed the Minister’s appeal and, using the language in the former
statute, found that Mrs. Tait was the “spouse” for purposes of the Plan. It
indicated that the Minister’s failure to call evidence and Ms. Walley’s
withdrawal of her application before Mrs. Tait was denied the survivor’s
benefits meant that there was no lis between the contending parties. It
wrote, at para.34:
In this case, I am not
satisfied that Ms. Walley’s withdrawal of her claim for status as a common law
wife was not permitted. It is after all a status which can only be advanced by
a person and can only be established upon a preponderance of evidence. Since
no evidence was called by the Minister before the Review Tribunal or before the
Board, except for the withdrawn application and statutory declaration, it is my
view that the Appellant has not met the onus. […]
[19]
The
Board rejected the Minister’s argument that the Plan contains no provision to
waive rights or abandon or withdraw an application, and because of that, Ms.
Walley’s withdrawal has no effect on the Minister’s initial determination that
she is the “survivor” of the deceased contributor for the purpose of the Plan.
It wrote, at para.18:
The Minister’s argument
before us that Ms. Walley could not withdraw in favour of the legal wife seems
unlikely. That is especially the case when she could do so at any time in the
appeal process. If she did so, she would not have satisfied the onus, and the
legal wife would succeed. It is difficult to understand why the Minister
should have a higher standing than the person claiming common law status.
The Board effectively took the view that
Ms. Walley was entitled to withdraw her claim for status as a “common-law
partner”, and thereby change the Minister’s initial determination that she was
the deceased contributor’s “survivor”.
Analysis
[20]
The
proper interpretation of the Plan is generally considered to be a question of
law, reviewable on a standard of correctness. In reviewing a decision of the
Board involving facts or matters of mixed fact and law, the standard of review
to be applied is patent unreasonableness (Spears v. Canada (2004), 320
N.R. 351 (C.A.) at para. 10).
[21]
Before
reviewing the Board’s decision, the Court must consider the legislative purpose
of the Plan. The Supreme Court of Canada in Granovsky v. Canada (Minister of
Employment and Immigration), [2000] 1 S.C.R. 703, indicated at para. 9:
The CPP was designed to
provide social insurance for Canadians who experience a loss of earnings owing
to retirement, disability or the death of a wage-earning spouse or parent. It
is not a social welfare scheme. It is a contributory plan in which Parliament
has defined both the benefits and the terms of entitlement, including the level
and duration of an applicant’s financial contribution.
[22]
To
qualify for a survivor’s pension, an applicant must be found to be the
“survivor” of a deceased contributor, as that term is defined in subsection 42(1)
of the Plan. The scheme of the Plan is such that it contemplates only one
survivor in respect of a given contributor, that being the person who is in a
spousal relationship with the contributor at the time of his or her death.
Thus, “the claim of a separated married spouse may be displaced by that of a
common-law spouse who is cohabiting with the contributor at the time of the
latter’s death and had been doing so for the prior year” (Hodge v. Canada
(Minister of Human Resources Development), [2004] 3 S.C.R. 357 at para.6).
[23]
The
Minister argues that the Board erred when it found that Mrs. Tait meets the
statutory definition of “survivor”. The Minister submits that the Board
erroneously took the position that Ms. Walley could withdraw her application at
any time in the appeal process and thereby change the Minister’s initial
determination that she was the “survivor” of the deceased contributor.
[24]
The
Minister contends that Ms. Walley’s withdrawal of her claim for a survivor’s
pension is irrelevant to determining whether Mrs. Tait is the “survivor” for
the purpose of the Plan. I agree.
[25]
The
Plan requires that an application be made in order for the Minister to approve
payment of the survivor’s pension to an applicant, who meets the definition of
“survivor” under the Plan (see subsection 60(1) of the Plan). However, Mrs.
Tait’s claim does not depend upon whether Ms. Walley applied, withdrew her
application, or failed to apply for a pension; it depends, rather, on all the
evidence before the Board related to whether the deceased contributor had a
“common-law partner”, as that term is defined in the Plan, regardless of how
that evidence was obtained. If the evidence establishes on a balance of
probabilities that there is a common law partner at the date the contributor
died, that common law partner, not the legal wife, is the survivor of the
deceased contributor.
[26]
This
is in harmony with the decision of the Board in Minister of Social
Development v. Hudson and Stanizewski, (May 19, 2005) CP03662 (“Hudson”), which was
relied on by the Minister. In that case, both the legal wife and the
common-law partner of the deceased contributor applied for a survivor’s
pension. The Minister denied the legal wife’s claim on the basis that the
common-law partner was the surviving spouse within the meaning of the Plan.
However, the Minister also denied the common-law partner’s claim because she
had not reached 35 years of age at the time of the contributor’s death. The
result was that no survivor’s pension was to be paid to anyone. To circumvent
the problem, the two spouses reached a written agreement, and the common-law
partner withdrew her application for a survivor’s pension. Despite this, the
Board disallowed the legal wife’s claim for a survivor pension. It wrote (at
paras. 60 and 61):
In my view, whether the
common-law spouse files an application for benefits or files and withdraws it
later, as here, is totally irrelevant to a determination of who is the spouse
in s. 2(1) and the surviving spouse for the purposes of s. 44(1)(d).
If the Minister has
sufficient credible evidence that a common-law spouse exists, as defined in s.
2(1), then s. 2(1) states that the person is the spouse for the purpose of
survivor’s benefits regardless of whether there is a married spouse in
existence: the common-law spouse takes or is entitled to take and the married
spouse loses out, subject, of course, to the de novo appeal rights
vested in an applicant to have these issues ventilated before the Review Tribunal
and the Board.
[27]
In
Hudson, the Board
also noted, at para.88:
Thus, spouses and others
may give up voluntarily certain rights they enjoy under statutory regimes of a
variety of kinds. What they cannot do is trench upon the legislature’s role to
set clear-cut statutory criteria for a pension or entitlement. Parties may be
able to contract out of a statute but what they cannot do is contract
themselves into a statute’s benefits, absent authority to do so within
the four corners of the statute.
[28]
This
is a correct view of the law, except for the standard of proof required:
credible evidence is not enough; the proof must be on the balance of
probabilities. The Plan does not specify that the Minister, or anyone else for
that matter, cannot provide evidence, where the alleged common-law partner
fails to apply, or does not provide relevant evidence.
[29]
I
can see no error of law in the Board’s understanding of the meaning of the
definition of “survivor” in the Plan. The Board correctly stated (at para. 13)
that the “designation of common law requires evidence and is a question of
mixed fact and law”. The Board understood that the legal wife is prima
facie entitled to the survivor’s pension, absent proof of the existence of
a “common-law partner”. The definition clearly states that “if there is no
person described in paragraph (b)” then the legal wife is the survivor. If,
however, there is a common law partner, as defined in subsection 2(1), at the
time of death, that person is the survivor.
[30]
It
was an error of law, for the Board to have relied on the withdrawal of Ms.
Walley’s claim and the absence of a lis between Mrs. Tait and Ms.
Walley. Nor was it correct to be concerned with the source of the evidence
before the Board. These matters are irrelevant to the issue.
[31]
In
addition, in my view, the Board’s decision is patently unreasonable in its
application of the law to the facts in this case because it totally ignored the
overwhelming and uncontroverted evidence properly before the Board that there
was a common-law partner, Ms. Walley, who was the survivor, and who, we were
told, has been receiving these survivor benefits since shortly after she
applied for them. The evidence showed that:
·
Ms.
Walley and the deceased contributor both lived at the same residence for 26
years;
·
Ms.
Walley was named as both the executor and the main beneficiary in the deceased
contributor’s Will;
·
Ms.
Walley was referred to as “my common-law wife”, and Mrs. Tait was referred to
as “ my estranged wife” in the deceased contributor’s Will;
·
Ms.
Walley submitted to the Minister a Statutory Declaration of Common-law Union naming
the deceased contributor as her common law partner;
·
Mrs.
Tait submitted to the Minister a Statutory Declaration – Separation of Legal
Spouses, which provided that she and the deceased contributor had been
separated since 1973, that the reason for their separation was “irreconcilable
differences”, and that the deceased contributor lived in a common-law
relationship during their separation;
·
Mrs.
Tait never disputed that the relationship between Ms. Walley and the deceased
contributor existed. She merely claimed entitlement to the benefit because of her
status as the deceased contributor’s legal wife, his wishes and her difficult
financial circumstances.
In addition, the representative of Mrs.
Tait admitted at the hearing of this appeal that Ms. Walley was Mr. Tait’s
common-law partner when he died.
[32]
It
is clear that survivor benefits under the Plan cannot be assigned or
designated, given subsection 65(1) of the Plan. Mr. Tait tried to direct by
his Will that his legal wife would receive the survivor’s pension, the
approximate amount of which, we are told, was paid by him to her while he
lived. Following his death, Ms. Walley sought to honour Mr. Tait’s wishes, but
seemingly has had a change of heart. There is nothing to prevent her from
giving or sharing the amount she has been receiving under the Plan, said to be
$109 per month, if she chooses to do so. Unfortunately, the Minister is unable
to accede to the deceased’s wishes, nor to the original request by Ms. Walley
to pay the benefit to Mrs. Tait. Nor can the Minister ignore the clear wording
of the Plan and the clear evidence as it exists.
[33]
For
these reasons, I would allow this application for judicial review, set aside the
decision of the Board, and refer the matter back to the Board to set aside the
decision of the Review Tribunal and direct it to affirm the decision of the
Minister, deciding that Ms. Walley is the only “survivor” of Mr. Tait for
purposes of the Plan. Costs were not requested and not awarded.
“A.M. Linden”
“I
agree
Marc
Noël J.A.”
“I
agree
John
M. Evans J.A.”
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