Case information

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The facts relevant to the appeal were found by the Federal Court of Appeal. To be eligible for a survivor’s pension under section 44 of the Canada Pension Plan, R.S.C., 1985, c. C-8 (the CPP), a person must have been the spouse of the contributor at the time of the latter’s death. The sole issue in this appeal is whether the definition of “spouse” in subsection 2(1) is invalidated by s. 15 of the Charter because it requires a common-law spouse, but not a married spouse, to have resided with the contributor at the date of the contributor’s death.

In 1991, Betty Hodge was found to be disabled for the purposes of the CPP, and was granted disability benefits. From 1972, she had lived in a common-law relationship with Ronald B. Bickell (the contributor), but in March of 1993 the couple separated. The separation followed years of verbal and physical abuse that Ms. Hodge said she had suffered at the hands of the contributor. A brief reconciliation in January and February of 1994 failed, and it is agreed that when Ms. Hodge left, she intended to end the relationship. Ms. Hodge did not seek support or a division of assets from the contributor, who was then without means, having filed an assignment in bankruptcy. The contributor died on July 1, 1994, some four months after Ms. Hodge left. The Respondent immediately applied for both a survivor’s pension and a division of unadjusted pensionable earnings. The pension application was denied, while the application for the division of unadjusted pension earnings was granted. As a result of this division, the Respondent’s disability and CPP retirement pensions were increased. The Respondent appealed the denial of the survivor’s pension to a CPP Review Tribunal (the Tribunal). It held that the definition of “spouse” in s. 2(1) breached the equality provisions in s. 15 of the Charter because it excluded the Respondent on the basis that she did not reside with her common-law husband for the twelve months immediately prior to his death. Consequently, the Tribunal declared the offending parts of s. 2(1)(a)(ii) to be of no force or effect and allowed the appeal. In addition, since Ms. Hodge was refused a survivor’s pension because she was not cohabiting with the contributor when he died, the Tribunal held that she was entitled to the pension. The Minister’s appeal to the Pension Appeals Board (the Board) was allowed. That decision was subsequently overturned by the Federal Court of Appeal on judicial review.

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