Claimant Loses Appeal Over Pension Credit Split Time Limit

OUTCOME: Dismissed

Citation: HM  v  [RESPONDENT] Development and JB , 2026  SST  314 Social Security Tribunal of Canada Appeal Division Decision Appellant: [redacted] Respondent: [redacted] Representative: [COUNSEL] [NAME]: J. B. Decision under appeal: General Division decision dated July 17, 2025 (GP-24-2021) Tribunal member: [NAME] of hearing: Videoconference Hearing date: April 13, 2026 Hearing participants: Appellant Respondent’s representative [NAME] date: April 24, 2026 File number: AD-25-627 On this page Decision Overview Issue Analysis Conclusion Decision [ 1 ] I am dismissing the appeal. The Appellant, [APPELLANT]. (Claimant), is not entitled to a credit split under the [NAME] . Overview [ 2 ] The Claimant is seeking a division of the unadjusted pensionable earnings ( DUPE ) of the [NAME] pension credits of [NAME], J. B. She had been in a [NAME]-law relationship with him from September 1, 1999, to January 15, 2011. In other words, she is looking to split his pensionable credits with him. [ 3 ] Normally these types of applications have to be made within four years from the time [COMPANY] separate. There is an exception. The [COMPANY] can “agree, in writing, at any time after the end of that four-year period.” Footnote 1 [ 4 ] The [APPELLANT] applied to split [NAME]’s credits on April 3, 2024—years after the four-year time limit. The [APPELLANT] says she and her [NAME] [NAME]-law partner agreed to the credit split in their separation agreement. She argues that he should be bound by the separation agreement and that the credit split should take place. She notes that she had been relying on the credit split and will face financial hardship without it. She argues that the [NAME] does not require the parties to agree in writing to waive the four-year time limit within which such applications have to be made. She asks the Appeal Division to allow her appeal. [ 5 ] The Respondent, the [RESPONDENT] and [NAME] (Minister), argues that the [APPELLANT] is not entitled to a credit split after four years has passed since separation, unless there is a written waiver. The Minister denies that [NAME] waived or agreed to waive the four-year time limit. The Minister argues that the [APPELLANT] is out of time for a credit split as she applied for the credit split more than four years after the time limit set out in the [NAME] . [ 6 ] [NAME] acknowledges that he signed a separation agreement, but denies that he waived the four-year time limit. He argues that the [APPELLANT] had four years from the date of separation within which to apply for a credit split, but that she is out of time. He argues that allowing a credit split to take place will cause him hardship, given his own medical condition. Footnote 2 [ 7 ] Both the Minister and [NAME] are asking the Appeal Division to dismiss the Claimant’s appeal. Issue [ 8 ] Is the Claimant entitled to a credit split? Analysis [ 9 ] Under section 55.1(c)(ii) of the [NAME] , a credit split takes place when the [COMPANY] have been living separate and apart for a period of one year or more, and the application is made within four years after the day on which the [COMPANY] commenced to live separate and apart or, if both [COMPANY] agree in writing, at any time after the end of that four-year period. [ 10 ] The parties agree that the Claimant applied for a credit split after the four-year time limit had already passed. They separated in January 2011, and the Claimant applied for a credit split on April 3, 2024. [ 11 ] The parties, however, disagree on whether section 55.1(c)(ii) requires an express waiver and, if so, whether the Claimant and [NAME] agreed to waive the four-year time limit. Hence, I will focus on whether there had to be an express waiver, and on whether the [NAME] agreed, in writing, to a credit split, at any time after the end of the four-year time limit. This requires examining their separation agreement. There has to be an express reference to the four-year period [ 12 ] The [APPELLANT] argues that, as long as the [COMPANY] agree to a credit split, that will meet the requirements under section 55.1(c)(ii)—even if the [NAME] partners do not mention the four-year period. She argues that this is so because the section does not expressly state that [COMPANY] must waive the four-year time limit within which to apply for a credit split. [ 13 ] The section does not use the word “waive.” But it is clear from the text of the section, read together with the context and purpose of the legislation (using the modern approach to statutory interpretation), that the [COMPANY] must agree “at any time after the end of that four-year period,” and that this must be in writing. In other words, the [NAME] partners must specifically have an agreement taking place after the four-year period. [ 14 ] The text of the legislation is not explicit as to whether the [COMPANY]’ agreement is about the making of an application or about a credit split. Arguably, the section can be read two ways: either that the partners agree that they can make an application after the end of the four-year period, or that they agree to a credit split after the end of the four-year period. [ 15 ] Practically speaking, the [NAME] partners do not need to agree to being able to make an application after the end of the four-year period. They can continue to make an application after the four-year period has passed, without needing the other partner’s agreement. The fact that they can continue to make an application, however, does not thereby guarantee that there will be a credit split. [ 16 ] From this perspective, the most reasonable reading of section 55.1(c)(ii) is that the agreement must be over whether a credit split can take place after the four-year period has ended. This is the most reasonable reading because it is the four-year period that acts as the barrier to a credit split taking place, and not whether a [NAME] partner makes an application. Without an explicit agreement to a credit split, the four-year limitation applies. [ 17 ] The preamble in section 55.1 provides important context. The preamble lists the circumstances when a division of unadjusted pensionable earnings shall take place. In this context, it is also reasonable to interpret subsection (ii) to mean that the [NAME] partners agree to a credit split, rather than to the making of an application. [ 18 ] The context can be better illustrated by breaking up section 55.1(1)(c)(ii) into its constituent parts. The context can be seen as follows: 55.1(1)(c)(ii) … a division of unadjusted pensionable earnings shall take place if the application is made within four years after the day on which the [COMPANY] commenced to live separate and apart, or 55.1(1)(c)(ii) … a division of unadjusted pensionable earnings shall take place if both [COMPANY] agree in writing, at any time after the end of that four-year period. [ 19 ] When viewed within this context, it becomes much clearer that the [NAME] partners agree to a division at any time after the end of that four-year period. This is so, because the agreement must refer to the preceding noun, which in this case is the division itself. [ 20 ] This interpretation, that the agreement refers to a credit split, is also consistent with the history and the underlying purpose of the legislation. In 2007, section 55.1(c) of the [NAME] was amended to provide for a credit split involving [NAME]-law partners. The credit split was designed to allow for the equal division of [NAME] pension credits that a couple built up during the time that they lived together, in the event of divorce, annulment, separation, or the end of a [NAME]-law relationship. [ 21 ] I was unable to locate any specific legislative background, such as Hansards, to explain the purpose behind the four-year limitation period. But the Parliamentary Information and Research Service of the Library of the Parliament of Canada provided a legislative summary on amendments to the [NAME] . The summary sheds some light on the purpose behind section 55.1(1)(c). [ 22 ] The legislative summary shows how the section was expected to be interpreted and how it would operate. It suggests that the four-year time limit would no longer act as an absolute bar to a credit split. However, it would be dependent on the cooperation of the other partner if an application for a credit split were not made within four years. [ 23 ] The legislative summary reads as follows: Clause 3(2) amends section 55.1(1)(c) to provide for a credit split if the application is made within four years of separation, or at any time after that date so long as both partners agree to the credit split in writing. This amendment provides for a more equitable opportunity to gain pensionable earnings during a period where a couple may have made compromises for the purposes of child rearing or maintaining the family home. Where a [NAME] [NAME]-law partner has not met the four-year deadline, his or her opportunity is no longer barred due to a time lapse; but, as the process then depends on the cooperation of the other party, it may be more difficult than an application made in a timely manner . Footnote 3 (my emphasis) [ 24 ] The Minister previously published a guide for the legal profession dated March 2008, on credit splitting. The guide reads as follows: In 2007, Bill C-36: An Act to Amend the [NAME] and the Old Age Security Act amended section 55.1 (1) (c) to provide for a credit split if the application is made within four years of separation, or at any time after that date, so long as both [COMPANY] agree to waive the time limit inwriting. A waiver document exists for this purpose. That means that the process of credits plitting between [NAME] partners beyond the four-year deadline would depend on the cooperation of both parties. Footnote 4 [ 25 ] Case law supports this interpretation of section 55.1(c)(ii), that there must be an agreement between the parties that specifically mentions that the [NAME] partners must agree to a credit split after the four-year time limit, or, as some of the cases say, to a waiver of the time limit. [ 26 ] In Minister of Human Resources and Skills Development  v  [NAME]. and [NAME]. Footnote 5 the Pension Appeals Board held that there had to be a specific or express waiver of the four-year time limit. [ 27 ] In that case, the partner had written a letter in which he had given his permission to his [NAME] to apply for any pension or income to which he would be entitled to receive. He wrote, “In the event that in later years you […] need to apply for my IBM pension or [NAME], or any other pension or income that I would be entitled, to you […] being my [NAME] for 12 years, I give you full permission to do so.” Footnote 6 [ 28 ] The partner’s intention in [NAME]. seemed clear. He did not object to his partner applying for a pension to which he was entitled. Even so, his letter was seen as insufficient. The Pension Appeals Board agreed with the Minister that for a waiver to be enforceable, it had to specifically contemplate the right being waived. Footnote 7 (The partner could not possibly have contemplated waiving the right, as section 55.1(c)(ii) of the [NAME] had yet to be enacted.) [ 29 ] The Minister cites [NAME]. , Footnote 8 a recent case before the Appeal Division. One of the clauses in the separation agreement there provided that: [[NAME].] and [her [NAME] [NAME]-law partner] [NAME]. shall be entitled to request that their credits under the [NAME] be distributed equally in accordance with the provisions of the [NAME] for those credits acquired during the course of their relationship. [ 30 ] The Appeal Division accepted that the separation agreement between [NAME]. and her [NAME] [NAME]-law partner [NAME[NAME]. had the effect of permitting [NAME]. or [NAME]. to ask for a credit split. However, the Appeal Division found that the separation agreement between them did not enable them to avoid the four-year limitation. It found that, at most, the separation agreement extended only to the possibility of requesting a credit split. [ 31 ] Notably, as the Appeal Division determined in [NAME]. , any requests for a credit split still had to comply, “with the provisions of the [NAME] [ sic ].” Footnote 9 The Appeal Division determined that this meant that either an application for a credit split had to be made within four years of separation, or the separation agreement had to specifically refer to the four-year limitation. [ 32 ] The Appeal Division wrote: The [separation agreement] cannot be interpreted as giving a blanket entitlement to a DUPE . It just opens the door for a request that the Agreement (as opposed to the CPP) would otherwise prohibit. The DUPE timing requirements of the [NAME] must still be observed and applied unless the [separation agreement] specifically addresses them. [ 33 ] In the case of [NAME]  v   [NAME] , Footnote 10 Ms. [NAME] made an application to the New Brunswick Courts to compel her [NAME] [NAME]-law partner to sign a statement agreeing to a credit split after the four-year time limit. A signed statement would then allow the federal government to proceed with her application for a credit split. She relied on a separation agreement, which was incorporated into a consent Order, as the basis for compelling her [NAME] partner to sign a statement. The separation agreement provided as follows: Each of the parties may apply to split pensionable credits under the [NAME] with respect to accumulated credits. [ 34 ] Ms. [NAME] argued for a liberal interpretation so that it would reflect the parties’ expectations. [ADDRESS] rejected Ms. [NAME] arguments. [ADDRESS] found that Ms. [NAME] application for a credit split could not be approved unless the two [NAME]-law partners signed a statement or agreement waiving the four-year period. [ADDRESS] found that the separation agreement did not accomplish this. [ 35 ] These cases all required agreements to be specific about agreeing to a credit split. [ 36 ] I will now examine the separation agreement between the Claimant and [NAME] to determine the nature of the agreement between them. The separation agreement [ 37 ] The [NAME] signed a separation agreement on March 16, 2011. The agreement included a section on their [NAME] credits, as follows: C.P.P.

16.  It is acknowledged that either party is entitled to apply for a redistribution of [NAME] credits which may have accrued to either party during the marriage and cohabitation of the parties, September 1, 1999 to January 15, 2011. Footnote 11 [ 38 ] The [APPELLANT] argues that the separation agreement expressly authorizes a credit split for a defined period. She argues that the agreement meets all of the conditions under section 55.1(c)(ii) of the [NAME] . [ 39 ] The [APPELLANT] rejects any notion that the separation agreement merely means that she had permission to apply for a credit split. She argues that such an interpretation “would render negotiated language nugatory , which the text-context-purpose method of interpretation rejects.” Footnote 12 [ 40 ] The [APPELLANT] argues that “entitled to apply” grants a formal, recognized right or claim and is stronger than merely saying that a party “can apply.” And, by prefacing the section with “It is acknowledged,” she argues that both she and [NAME] “formally recognize[d] and agree[d] to the specified right, eliminating any potential dispute about whether the right exists.” Footnote 13 [ 41 ] The [APPELLANT] further argues that the separation agreement has to be read in its entirety for context. She argues that the paragraph relating to the [NAME] credits has to be read alongside paragraph 11 of the separation agreement. She argues that under paragraph 11, she and [NAME] agreed to be bound by the obligations within the separation agreement, and that the obligations had to be fulfilled, regardless of whether a party later changed their mind. Footnote 14 [ 42 ] However, paragraph 11 deals with the Claimant’s and [NAME]’s general agreement and intention. It does not deal with the notion of credit splitting. [ 43 ] In short, the [APPELLANT] argues that “entitled to apply” stands in place of a waiver. The [APPELLANT] argues that the separation agreement reflects a mutual consent to a credit split. [ 44 ] I accept the [APPELLANT] arguments that “entitled” suggests that a party has a right to or is qualified for something. But I have to look at the wording that the parties chose to determine whether they defined any entitlements. [ 45 ] The Claimant and [NAME] defined what that entitlement is. They set out that the right involved is the right “to apply for a redistribution of [NAME] pension credits.” [ 46 ] The Minister argues that this case is similar to [NAME]. and that it should therefore be of some guidance. The [APPELLANT] argues that [NAME]. is distinguishable. She says that the parties there did not agree to divide any pensionable credits. She says that, at most, they merely acknowledged the legislation. She argues that [NAME]. does not impose any requirements that the parties expressly reference the four-year limitation. [ 47 ] In fact, the Appeal Division in [NAME]. found that the [NAME] imposes a four-year limitation for [COMPANY] to apply for a credit split. To avoid that limitation, any agreements between [COMPANY] had to specifically refer to that limitation. Footnote 15 [ 48 ] I find the wording of the agreement in [NAME]. similar to the wording that the [NAME] chose in their separation agreement. The Claimant and [NAME] each enjoyed the right to apply for a division of pension credits. However, their separation agreement was silent and did not make any reference to the four-year time limit. [ 49 ] Just as important, the separation agreement did not state that the [NAME] were entitled to a division of unadjusted pensionable credits. At most, it stated that either was entitled to apply for a redistribution of credits. [ 50 ] Including the words “to apply for” defined the scope of either party’s entitlement. It did not extend to waiving the time limit or to agreeing to a credit split after the four-year time limit. [ 51 ] Had the [NAME] agreed that they were entitled to a redistribution of unadjusted pensionable credits after the four-year time limit, that would have been a different matter altogether. [ 52 ] The Minister notes that the Federal Court of Appeal has held that there are only limited circumstances when a term of an agreement may be implied. There may be an implied term when it is necessary to produce the result intended by the contracting parties. Footnote 16 [ 53 ] I recognize that the Claimant argues that the separation agreement does not accurately reflect her intentions, nor that of [NAME]. However, at this point, [NAME] does not concede this point and more importantly, there is no indication that he ever agreed to a credit split after the four-year time limit. [ 54 ] Besides, the [APPELLANT] acknowledges that when she signed the separation agreement, she was unaware that there was a four-year time limit within which to apply for a credit split. Footnote 17 [ 55 ] In short, the evidence does not allow me to find that both the [NAME] agreed to a credit split after the four-year time limit. So, there is no basis upon which I can find that there was an implied agreement to a credit split after the four-year time limit, or to a waiver. [ 56 ] Finally, both the Claimant and [NAME] have argued at various times that, depending upon the outcome of this appeal, they will suffer financial hardship. [NAME] has provided some of his medical records. These are not relevant considerations under section 55.1(c)(ii) of the [NAME] ,and I have not considered them. Conclusion [ 57 ] The appeal is dismissed. [ 58 ] The evidence does not show that the [NAME] agreed to a division after the four-year time limit within which to apply for a credit split. The words that “it is acknowledged that either party is entitled to apply” falls short of showing this, or in showing that they intended to waive the four-year time limit. The agreement does not mention or hint at the four-year limit. The agreement, as it is written, by no means stands in place of a waiver nor show that the parties consented to a division after the four-year time limit. [ 59 ] As a result, the Claimant is not entitled to a credit split under the [NAME]. Footnotes Footnote 1 Section 55.1(c)(ii) of the [NAME] . Return to footnote 1 [NAME] 2 [NAME]’s submissions dated January 1, 2026, at AD6-7. Return to footnote 2 [NAME] 3 [NAME] Summary No. LS-548E, “Bill C-36: An Act to Amend the [NAME] and the Old Age Security Ac t,” at page 6. Return to footnote 3 [NAME] 4 [NAME] : Credit Splitting, a Guide for the Legal Profession, at ISSD-004-03-08 at page 4. Return to footnote 4 [NAME] 5 Minister of [NAME]  v  [NAME].  v  [NAME]. (July 19, 2010), CP 26360 ( PAB ). Return to footnote 5 [NAME] 6 Minister of [NAME]  v  [NAME].  v  [NAME]. (July 19, 2010), CP 26360 ( PAB ) at para 5. Return to footnote 6 [NAME] 7 Minister of [NAME]  v  [NAME].  v  [NAME]. (July 19, 2010), CP 26360 ( PAB ) at para 28. Return to footnote 7 [NAME] 8 [NAME].  v  [RESPONDENT] Development , 2026  SST  5 (AD). Return to footnote 8 [NAME] 9 [NAME]. at para 49. Return to footnote 9 [NAME] 10 [NAME]  v  [NAME] , 2023 NBKB 56 (CanLII). Return to footnote 10 [NAME] 11 Separation agreement, GD2-20 (and GD2R-20). Return to footnote 11 [NAME] 12 Claimant’s submissions filed on February 2, 2026, at AD10-5, citing [NAME]  v  Canada (Attorney General) , 2013  FCA  16. Return to footnote 12 [NAME] 13 Claimant’s Application to the Appeal Division – Income Security, at AD1-5 and AD1-6. Return to footnote 13 [NAME] 14 [APPELLANT] to the Appeal Division – Income Security, at AD1-4 to AD1-6. Return to footnote 14 [NAME] 15 [NAME]., at para 61. Return to footnote 15 [NAME] 16 Minister’s submissions, at para 7, at AD7-8. Return to footnote 16 [NAME] 17 At approximately 16:35 of the audio recording of the Appeal Division hearing on April 13, 2026. Return to footnote 17 [NAME]