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Pensions - Canada Pension Plan - Survivor's Pension. Pentesco v. Fraser
In Pentesco v. Fraser (Fed CA, 2023) the Federal Court of Appeal considered a JR over whether the applicant was "entitled to a [CPP] survivor’s pension":[3] The CPP is a public social insurance program and a survivor’s pension is payable to the survivor of a contributor. A survivor can be a person married to the contributor at the time of death or a common-law partner at the time of death (Subsection 42(1), CPP). More particularly, pursuant to the CPP, a common-law partner is someone who has cohabited with the contributor, in a conjugal relationship, for a continuous period of at least one year prior to his or her death. ... . Weatherley v. Canada (Attorney General)
In Weatherley v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal's Stratas JA get right to the point on survivor's CPP pensions, and then follows up with more detail:[1] Under the Canada Pension Plan, R.S.C. 1985, c. C-8, after a spouse dies, the surviving spouse can receive a survivor’s pension. Suppose the surviving spouse remarries and then the second spouse dies. Can the surviving spouse receive two survivor’s pensions?
[2] No. Subsection 63(6) of the Canada Pension Plan limits the spouse to one survivor’s pension, albeit the higher of the two.
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(2) The nature of the survivor’s pension under the Plan
[15] The eligibility for and calculation of the survivor’s pension under the Plan is governed by sections 58, 63 and 72 of the Canada Pension Plan.
[16] Anyone over the age of 35 who survives a married or common law spouse who contributed to the Plan is eligible for a survivor’s pension. The amount is calculated partly in relation to the amount of the deceased spouse’s contributions to the Plan. There are other factors: a flat-rate component for survivors under the age of 65, reductions for young survivors, and certain adjustments if the survivor has dependant children. The amount of the pension may also be adjusted downwards if the survivor is receiving other benefits, such as a disability pension: see s. 58(6).
[17] Subsection 63(6) fits amongst these factors. If an individual has survived two spouses, the amount of the survivor’s pension is capped at one pension. Only the greater of the contributions of the two deceased spouses is used to calculate the survivor’s pension. This reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time. . Havaris v. Canada (Attorney General)
In Havaris v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered issue estoppel in provincial family law proceedings versus federal CPP proceedings:[10] The doctrine of issue estoppel applies to prevent re-litigation of an issue where the following criteria are met: the same question was decided in the previous proceeding; that proceeding involved the same parties or their privies; and the previous decision was a final one (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 25, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at para. 92).
[11] Here the questions decided by the Ontario Superior Court and the SST-GD were not the same given the differences between the SLRA and the CPP, which define "“spouse”" differently.
[12] Under Part II of the SLRA, for purposes of the division of property of a deceased who died intestate, where such property has a value below $200,000.00, a "“spouse”" does not include an unmarried spouse but does include a married spouse from whom the deceased has been separated, even if they were separated for several years (SLRA, ss. 1(1), referring to the definition of "“spouse”" in ss. 1(1) of the Family Law Act, R.S.O. 1990, c. F.3, and SLRA, s. 45; General, O. Reg. 54/95 under the SLRA, ss. 1(a)). Conversely, for purposes of support of dependants, under Part V of the SLRA, a "“spouse”" is defined to include persons who are not married and have cohabited "“continuously for a period of not less than three years”" (SLRA, ss. 57(1), referring to the definition of "“spouse”" in s. 29 of the Family Law Act).
[13] Given the different definitions in Part II and Part V of the SLRA, a deceased’s estate may be divided between more than one spouse as that term is defined differently for different purposes. Indeed, that is precisely what occurred in the applicant’s case before the Superior Court, where she was awarded only a relatively small portion of the deceased’s estate.
[14] In contrast, the survivor’s pension under the CPP cannot be split in this way as the CPP provides that only one spouse may be awarded a survivor’s pension (see Canada (Minister of Human Resources Development) v. Tait, 2006 FCA 380, 356 N.R. 382 at para. 22; Carter v. Canada (Minister of Social Development), 2006 FCA 172, 351 N.R. 83 at para. 15; Dilka v. Canada (Attorney General), 2009 FCA 90, 388 N.R. 72 at para. 3).
[15] Under paragraph 44(1)(d) of the CPP, a survivor’s pension is payable to "“the survivor of a deceased contributor who has made base contributions for not less than the minimum qualifying period”". Subsection 42(1) defines the "“survivor”" of a contributor as "“a person who was the common-law partner of the contributor at the time of the contributor’s death”", or, if there is no such person, "“a person who was married to the contributor at the time of the contributor’s death”". The term "“common-law partner”" of a contributor is in turn defined in section 2 as "“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”".
[16] While the case law under the CPP has relied on the case law decided under provincial family or succession law legislation for the sorts of factors to be assessed to determine the existence of a conjugal relationship (see, for example McLaughlin v. Canada (Attorney General), 2012 FC 556, 408 F.T.R. 286 at paras. 15-16; Perez v. Hull, 2019 FCA 238, 2019 CarswellNat 4956 at paras. 7 and 22-23; L.H. v. Minister of Employment and Social Development and L.K., 2021 SST 58 at para. 10; C.L. v. Minister of Employment and Social Development, 2020 SST 985 at para. 11), determinations of spousal status under provincial legislation are not binding under the CPP given the different statutory contexts.
[17] Thus, findings made under provincial law as to the existence of a conjugal relationship are not binding under the CPP. Several decisions of the Social Security Tribunal, while not binding on this Court, are instructive on this point: see for example K. B. v. Minister of Employment and Social Development and S. C., 2019 SST 1501 at paras. 14 and 52; J. R. v. Minister of Employment and Social Development, 2019 SST 1357 at paras. 23-24, rev’d on other grounds in Canada (Attorney General) v. Redman, 2020 FCA 209, 2020 CarswellNat 5280); see also, by analogy, A. V. v. Minister of Employment and Social Development, 2019 SST 645 at paras. 9-14 (where the Social Security Tribunal found that the meaning of "“separated”" under provincial law was not determinative for the purposes of the Old Age Security Act, R.S.C. 1985, c. O-9).
[18] The second requisite factor for the application of the doctrine of issue estoppel is likewise absent in the instant case as the Minister of Employment and Social Development was not a party to the case before the Superior Court but was the respondent and essential party before the SST-GD and SST-AD. Nor could the Minister be considered a "“privy”" to the deceased’s married spouse as the Minister’s interests were not allied with hers. In The Doctrine of Res Judicata in Canada, 4th ed. (Toronto: LexisNexis Canada Inc. , 2015) at pp. 80-81, Donald Lange explains that for a party in later proceedings to be considered the privy of another party who participated in earlier proceedings, there must be a community or unity of interest between the two parties; their interests "“cannot be different in substance.”" They must have "“a parallel interest in the merits of the [previous] proceeding, not simply a financial interest in the result.”" This cannot be said of the Minister and the Added Party as the Minister has an independent interest in the application of the CPP and an obligation to ensure its correct application to all claimants, which is different from the Added Party’s interest in the deceased’s estate.
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