Date:
20090318
Docket:
A-402-08
Citation:
2009 FCA 90
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
ERIKA BRIDGET
DILKA
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on March 18, 2009)
RYER J.A.
[1]
This is an
application for judicial review of a decision of the Pension Appeals Board (the
“Board”), dated June 30, 2008, dismissing the applicant’s appeal from a
decision of the Review Tribunal which denied her claim for survivor’s pension
under paragraph 44(1)(d) of the Canada Pension Plan, R.S.C. 1985,
c. C-8, (the “CPP”) on the basis that she was not the survivor of a deceased
contributor, Mr. Richard Lovell, who died on March 8, 2005.
[2]
Paragraph
44(1)(d) of the CPP permits a survivor of a deceased contributor to
apply for a survivor’s pension when certain conditions, none of which is
relevant in the circumstances, are met. That provision reads as follows:
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(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;
|
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;
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[3]
Subsection
42(1) of the CPP defines a survivor in relation to a deceased contributor (the
“survivor”) as the person who was married to the contributor at the time of the
contributor’s death unless there was a person who was the common-law partner,
within the meaning of subsection 2(1) of the CPP (“common-law partner”), of the
contributor at the time of the contributor’s death. In that event, the survivor
will be the common-law partner and not the spouse. (See Carter v. Canada (Minister of Social
Development),
2006 FCA 172.)
[4]
In this
case, it is clear that Mr. Lovell was unmarried at the time of his death. The
issue is whether the applicant was the survivor of Mr. Lovell because she was his
common-law partner at the time of his death. The definition of common-law
partner reads as follows:
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"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.
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«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.
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[5]
To
establish that she was the common-law partner of Mr. Lovell at the time of his
death, the applicant is required to prove, on a balance of probabilities, that
she cohabited with Mr. Lovell in a conjugal relationship for a continuous
period of at least one year prior to his death.
[6]
The Board
carefully considered whether the applicant met the definition of common-law
partner in light of the evidence that was placed before it, including the
testimony of the applicant and her son. The Board noted that the applicant and
Mr. Lovell had lived together for around four years but had maintained separate
residences since October of 1987. The Board found that while there had been
considerable interaction between the applicant and Mr. Lovell since October of
1987, they had not held themselves out as being married or in a common-law
relationship. In particular, they described themselves to tax and social
welfare authorities as “single” and not as being in a common-law relationship.
[7]
In
considering the issue of whether the applicant and Mr. Lovell were cohabiting
in a conjugal relationship, the Board made specific reference to the decision
of Binnie J. of the Supreme Court of Canada in Hodge v. Canada (Minister of
Human Resources Development), [2004] 3 S.C.R. 357, quoting paragraph 42 of
that decision, which reads as follows:
42 The respondent terminated cohabitation and cohabitation is a
constituent element of a common law relationship. “Cohabitation” in this
context is not synonymous with co-residence. Two people can cohabit even though
they do not live under the same roof and, conversely, they may not be
cohabiting in the relevant sense even if they are living under the same roof.
Such periods of physical separation as the respondent and the deceased
experienced in 1993 did not end the common law relationship if there was a
mutual intention to continue. I agree with the observation of Morden J.A. in Re
Sanderson and Russell (1979), 24 O.R. (2d) 429 (C.A.), at p. 432, that,
subject to whatever provision may be made in a statute, a common law relationship
ends “when either party regards it as being at an end and, by his or her
conduct, has demonstrated in a convincing manner that this particular state of
mind is a settled one”.
[8]
Having
considered the evidence in light of the statutory definition of common-law
partner and the teaching of the Supreme Court of Canada in Hodge, the
Board concluded that the applicant had failed to establish, on a balance of
probabilities, that she had cohabited with Mr. Lovell in a conjugal
relationship for a continuous period of one year before his death. Accordingly,
the Board dismissed the applicant’s appeal from the decision of the Review
Tribunal denying her application for a survivor’s pension.
[9]
The
applicant requests that this Court set aside the decision of the Board denying
her claim for a survivor’s pension. The ground upon which the application is
based is that the Board erred in finding that the applicant was not the
survivor of Mr. Lovell, because she was not his common-law partner at the time
of his death.
[10]
This
ground alleges that the Board erred in the application of the legal elements of
the definition of common-law partner to the factual circumstances of the applicant.
It raises a question of mixed fact and law that is reviewable on the standard
of reasonableness unless the question contains an extricable legal issue, in
which event the standard of review will depend upon the nature of the extricable
legal issue (see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190). The applicant has not alleged that the question raised by
this ground contains any such extricable legal issue.
[11]
Dunsmuir also informs
that the reasonableness standard requires this Court to show deference to, and
not interfere with, a decision of the Board that falls within a range of
acceptable outcomes which are defensible in respect of the facts and law.
[12]
We have
considerable sympathy for the applicant. However, having reviewed her written
materials and heard her presentation, we are not persuaded that the Board’s
conclusion that she was not Mr. Lovell’s common-law partner at the time of his
death was outside the range of possible outcomes that are defensible in respect
of the facts and law. The Board’s findings that the applicant and Mr. Lovell
did not hold themselves out as married or in a common-law relationship and that
they represented themselves to tax and social welfare authorities as “single” are
supported by the record that was before the Board and provide a reasonable
basis, in fact and law, for the Board’s decision.
[13]
For the
foregoing reasons, the application will be dismissed, without costs.
"C. Michael Ryer"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-402-08
(APPLICATION FOR JUDICIAL REVIEW OF A
DECISION OF THE PENSION APPEALS BOARD, DATED JUNE 30, 2008)
STYLE OF CAUSE: ERIKA
BRIDGET DILKA v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: MARCH 18, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (EVANS, RYER and TRUDEL JJ.A.)
DELIVERED FROM THE BENCH BY: RYER J.A.
APPEARANCES:
|
Erika Bridget Dilka
|
SELF-REPRESENTED
APPLICANT
|
|
Joël
Robichaud
|
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
|
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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