The Estate of I. H. v. Minister of Employment and Social Development and W.O.

The Estate of I. H. v. Minister of Employment and Social Development and W.O. Collection Old Age Security (OAS) and Guaranteed Income Supplement (GIS) Decision date 2019-01-07 Neutral citation 2019 SST 113 Reference number GP-17-2000 Member Patrick O'Neil Division General Division Decision Appeal dismissed Decision Content On this page Decision Overview Issue(s) Analysis Conclusion Decision [1] I. H., who died November 12, 2013, received Guaranteed Income Supplement (GIS) benefits to which he was not entitled for the period July 2012 to November 2013. [2] The Claimant is required to repay the GIS received by I. H. during the period. Overview [3] The Minister received I. H.’s initial application for GIS on February 13, 2013. He declared his marital status on the application as single. The application was approved effective July 2012. [4] I. H. submitted an Application for Renewal of the GIS for the payment period July 2013-June 2014 on August 15, 2013Footnote 1. He declared his marital status as “common-law union”. He declared the Added Party was his common-law partner. He reported the common-law union to the Added Party commenced January 1, 2012. The Added Party also signed the application as I. H.’s common-law partner. [5] I. H. did not report his common-law partner’s income on the renewal application. Subsequent to I. H.’s death, the Minister conducted a review of I. H.’s entitlement to GIS for the period July 2012 to November 2013. The Minister determined initiallyFootnote 2 and on reconsiderationFootnote 3 that I. H. and the Added Party were common-law partners during the period July 2012 to November 2013, and their combined incomes exceeded the maximum income threshold allowable for common-law partners to qualify for GIS. The Minister determined I. H. was not entitled to GIS during the period July 2012 to November 2013. The Minister determined the GIS received by I. H. must be repaid. Issue(s) [6] Was I. H. entitled to GIS during the period July 2012 to November 2013? [7] If not, is the Claimant required to repay the GIS received during the period July 2012 to November 2013? Analysis [8] GIS is an income tested benefit. If an applicant for GIS is single, the applicant’s GIS entitlement is determined based solely on the applicant’s income. If an applicant has a spouse or common-law partner, the applicant’s GIS entitlement is determined based on the combined income of the applicant and the applicant’s spouse or common-law partnerFootnote 4 earned in the “calendar year” preceding the “payment period”. [9] Every person who makes an application for GIS in respect of a payment period shall state whether the person has or had a spouse at any time during the payment period or in the month before the payment periodFootnote 5. [10] I. H. declared on his initial GIS application for the payment period July 2012-June 2013 that he was single. He declared on his renewal application for the payment period July 2013-June 2014 that he and the Added Party were common-law partners and their common-law union commenced in January 2012. The “calendar year” preceding the “payment period” July 2012-June 2013 is 2011. The “calendar year” preceding the “payment period” July 2013-June 2014 is 2012. [11] The Minister determined the combined incomes of I. H. and the Added Party in 2011 was $45,811.32, and in 2012 was $44,849.37. The Minister determined their combined incomes in 2011 and 2012 exceeded the maximum combined income threshold allowable to qualify for GIS during the period July 2012 to November 2013. Were I. H. and the added party common-law partners during the period July 2012 to November 2013? [12] I find significant credible documentary evidence that I. H. and the Added Party were common-law partners during the period July 2012, the month I. H. began receiving GIS, and November 2013, the month I. H. died. The evidence includes the following: I. H.’s declaration on his GIS renewal application dated August 8, 2013 that he and the Added Party were common-law partners since January 1, 2012; The Added Party’s Statutory Declaration of Common-law Union dated January 29, 2014 declaring she and I. H. lived together as common-law partners from January 2006 until I. H.’s death on November 12, 2013Footnote 6; I. H.’s Power of Attorney dated July 2, 2013 appointing the Added Party his attorney for specified purposes including authority to communicate with medical personnel and facilities on his behalf, and to obtain medical information from such persons or facilitiesFootnote 7; The Certificate of Independent Legal Advice and Witness attached to the Power of Attorney completed by the lawyer consulted by I. H. who certified I. H. had the capacity to understand the nature and effect of the Power of Attorney when signed July 2, 2013; Letter by Dr. Turriff dated October 14, 2014 indicating he knew both I. H. and the Added Party professionally and personally for many yearsFootnote 8. Dr. Turriff noted both I. H. and the Added Party had been patients of his, and his records indicated they shared the same home(s) since 2007. Dr. Turriff reported I. H. and the Added Party always presented themselves as spouses in the community; I. H.’s obituary published November 15, 2013 which noted I. H.’s survivors included the Added Party referred to as his “special friend”Footnote 9; I. H.’s obituary published December 4, 2013 which indicated I. H. was survived by his loving family including the Added Party referred to as his “companion”Footnote 10; I. H.’s Last Will and Testament dated May 7, 2013. The will provided if at his death his relationship with the Added Party is determined to be a cohabitation relationship, the will is made in contemplation of such relationshipFootnote 11; Letter from X dated May 5, 2014, confirming I. H. and the Added Party rented a double wide trailer from that company from February 2010 to April 30, 2013; Canada Revenue Agency records confirming I. H. and W. O.’s marital status as common-lawFootnote 12. [13] The Claimant’s position is to the effect I. H. and the Added Party were not common-law partners during the period July 2012 to November 2013, or ever. The Claimant alleges, without proof, that the Added Party forged I. H.’s signature on various documents, and has been charged with and convicted of various criminal offences. I reviewed the court/police records regarding offencesFootnote 13, and note the offences are all alleged to have occurred subsequent to I. H.’s death. I find such offences and allegations of forgery irrelevant to the issue of I. H. and the Added Party’s marital status during the period I. H. received GIS. [14] I find the evidence, including the documentary evidence referred to above, established on a balance of probabilities that I. H. and the Added Party were common-law partners during the entire period he collected GIS. [15] As I have determined I. H. and the Added Party were common-law partners during the period July 2012 to November 2013, I. H.’s entitlement to GIS during the period must be determined based upon the combined incomes of I. H. and the Added Party. As the combined incomes of I. H. and the Added Party for the taxation years 2011 and 2012 exceeded the maximum income threshold allowable to qualify for GIS during the payment periods July 2012-June 2013 and July 2013-June 2014, I find I. H. was not entitled to GIS for the period July 2012 to November 2013. [16] The Claimant has not suggested that the combined incomes of I. H. and the Added Party used by the Minister when recalculating I. H.’s entitlement to GIS for the period was inaccurate, or that the Minister’s calculations were wrong when determining I. H. was not entitled to GIS for the period. Is the Claimant required to repay the GIS received by I. H. during the period July 2012 to November 2013? [17] A person who has received a benefit payment to which the person is not entitled shall forthwith return the cheque or the amount of the benefit paymentFootnote 14. The amount received constitutes a debt due to the MinisterFootnote 15. As I. H. received GIS to which he was not entitled, the amount received must be repaid to the Minister. [18] The Tribunal is created by legislation and, as such, only the powers granted to it by its governing statute. I am required to interpret and apply the provisions set out in the OASA. I cannot use the principles of equity, or consider extenuating circumstances to allow I. H. to receive, and the Claimant to keep, GIS to which I. H. was not entitled to receive according to the OASA. The Minister may remit all or any portion of GIS received by an applicantFootnote 16, but I cannot. Conclusion [19] I find the Minister’s decisions to deny I. H.’s eligibility for GIS for the period July 2012 to November 2013, and to require repayment of GIS received during the period from the Claimant, correct and in accordance with the provisions of the OASA. [20] The appeal is dismissed. Footnotes Footnote 1 GD8 page 2 Footnote 2 GD2 pages 127-128 Footnote 3 GD2 pages 125-126 Footnote 4 Paragraph 12 Old Age Security Act (OASA) Footnote 5 Paragraph 15 OASA Footnote 6 GD7 page 10 Footnote 7 GD2 pages 102-103 Footnote 8 GD1 page 98 Footnote 9 GD1 page 96 Footnote 10 GD1 page 97 Footnote 11 GD1 pages 67-68 Footnote 12 GD7 pages 17-18 Footnote 13 GD1 pages 174-217 Footnote 14 Paragraph 37(1) OASA Footnote 15 Paragraph 37(2) OASA Footnote 16 Paragraph 37(4) OASA